2G Spectrum - S. Swamy vs. A. Raja - SC (2012) PDF

[2012] 11 S.C.R. 873 874 SUPREME COURT REPORTS [2012] 11 S.C.R.
SUBRAMANIAN SWAMY A A Ministers – A wrong judgment or an inaccurate or incorrect

v. approach or poor management, by itself cannot be said to be
A. RAJA a product of criminal conspiracy – In view of the materials on
(Special Leave Petition (Crl.) No. 1688 of 2012 etc.) record, it cannot be said that Finance Minister had misused
his position or conspired or colluded with the Telecom
AUGUST 24, 2012 B Minister so as to fix low entry fee by non-visiting spectrum
B
[G.S. SINGHVI AND K.S. RADHAKRISHNAN, JJ.] charges fixed in the year 2001 – No materials were made
available even for a prima facie conclusion that the Finance
SCAM: Minister had deliberately allowed dilution of equity of the two
companies – There is also no material made available to
2G Spectrum Scam – Complaint by the appellant before C C conclude that the Finance Minister abused his official position
Special Judge CBI to set in motion provisions of Prevention or used any corrupt or illegal means for obtaining any
of Corruption Act, against the then Telecom Minister – During pecuniary advantage for himself or for any other person – No
examination u/s. 200 Cr.P.C.,the appellant made allegation case is made out against him.
that the then Finance Minister and the Telecom Minister were
jointly and severely responsible for the scam – Prayer for D Centre for Public Interest Litigation and Ors. etc. v. Union
D of India and Ors. (2012) 3 SCC 1– referred to.
making the Finance Minister an accused and for carrying out
investigation against him – Special Judge held that the
Indo China Steam Navigation Co. v. Jasjeet Singh 1964
Finance Minister had no role in the subversion of the process
(6) SCR 594;State of Maharashtra v. Hans George 1965 (1)
of issuance of LOI and UAS Licences and allocation of
SCR 123; R.S. Joshi, Sales Tax Officer, Gujarat and Ors. v.
spectrum in the year 2007-2008 and that there was no E Ajit Mills Ltd. and Anr. 1977 (4) SCC 98: 1978 (1) SCR 338
evidence that he was acting pursuant to criminal conspiracy E
– cited.
– Prayers for making him accused and initiating investigation
against him rejected – Special Leave Petition – Contentions Case Law Reference:
interalia that the Finance Minister conspired with the Telecom
Minister and thus committed criminal misconduct and that he, 1964(6) SCR 594 Cited Para 7
F F
by illegal means, obtained pecuniary advantage – Held: The 1965 (1) SCR 123 Cited Para 7
materials available on record do not lead to the conclusion
that the Finance Minister conspired with the Telecom Minister 1978 (1) SCR 338 Cited Para 7
or that he attempted to hide the illegalities in the award of the
(2012) 3 SCC 1 Referred to Para 8
licences – Meeting of two ministers by itself would not be
sufficient to infer the existence of a conspiracy – Criminal G G
conspiracy cannot be inferred on the mere fact that there were CRIMINAL APPELLATE JURISDICTION : Special Leave
official discussions between the officers of Ministry of Finance Petition (Crl) No. 1688 of 2012.
and that of Department of Telecom and between the two
From the Judgment & Order dated 04.02.2012 of the
873 H
H
SUBRAMANIAN SWAMY v. A. RAJA 875 876 SUPREME COURT REPORTS [2012] 11 S.C.R.
Sepcial Judge CBI (04) (2G Spectrum Cases), New Delhi in A A others. Special Judge took cognizance on 2.4.2011. CBI’s
CC. No. 01(A)/11. further investigation disclosed that the monetary involvement
was much more and charge was laid. Special Judge took
WITH cognizance of the aforesaid charge sheet on 25.4.2011. Both
I.A. No. 34 in Civil Appeal No. 10660 of 2010. the charge sheets were clubbed together vide order dated
B B 22.10.2011 under Section 120B read with Sections 409, 420,
Subramanian Swamy (In-Person), H.P. Raval, ASG, P.P. 468 and 471 IPC and day to day trial began from 11.11.2011.
Rao, K.K. Venugopal, S. Wasim A. Qadri, Arijit Prasad, D.S. Dr. Subramanian Swamy’s complaint case No.CC 01/2011 was
Mahra Anirudh Sharma, Harsh N. Parekh, A.K. Sharma for the also taken on file and renumbered as CC.No.1(A)/2011.
Appearing parties.
3. Dr. Subramanian Swamy, the petitioner, herein, while
C C
The Order of the Court was delivered by he was being examined under Section 200, Code of Criminal
Procedure in CC No. 01(A)/11 had deposed on 17.12.2011
ORDER as well as on 07.01.2012 that Shri A Raja, the first accused,
could not have alone committed the offences alleged against
K.S. RADHAKRISHNAN, J. 1. Common questions arise
him, but for the active connivance of Shri P. Chidambaram, the
for consideration in both these applications, hence they are D D then Finance Minister. So far as the various charges were
being disposed of by a common order. SLP (Crl.) 1688 of
concerned, it was alleged that both Shri A. Raja and Shri P.
2012 arises out of an order dated 04.02.2012 in CC No.01(A)/
Chidambaram were jointly and severely responsible. Reference
11 passed by the Special Judge, CBI (04) (2G Spectrum
was also made to documents including Ext. CW 1/1 to CW 1/
Cases), New Delhi. I.A. No. 34 of 2012 has been filed by the
28 with an emphasis that all those acts were done by the
appellants in Civil Appeal No. 10660 of 2010 claiming almost E E accused – Shri A Raja in connivance, collusion and consent of
identical reliefs.
Shri P. Chidambaram and hence Shri P. Chidambaram was
2. Dr. Subramanian Swamy, the petitioner in special leave also guilty of commission of the offences under the P.C. Act
petition filed a criminal complaint on 15.12.2010 before the for which Shri A. Raja was already facing trial. Further, it was
Special Judge, CBI of Central/Delhi to set in motion the also pointed out that Shri P. Chidambaram was also guilty of
provisions of Prevention of Corruption Act (for short ‘the PC F F breach of trust on the question of national security for not
Act’) against A. Raja, the then minister of Telecommunications disclosing that Etisalat and Telenor were black-listed by the
and to appoint him as a prosecutor under Section 5(3) of the Home Ministry. Further, it was pointed out that there was
PC Act. The complaint was numbered as CC No.1 of 2010 and enough incriminating materials on record for carrying out the
was heard on several occasions. The case was later investigation against Shri P. Chidambaram and for making him
transferred to the Special Judge, CBI (04)(2G Spectrum G G an accused in the case. Further, it was also alleged that Shri
Cases), New Delhi. CBI, after investigation, filed a charge sheet P. Chidambaram had played a vital role in the subversion of
in that complaint on 2.4.2011 regarding commission of the process of issuance of Letter of Intent (for short ‘LOI’),
offences during 2007-2009 punishable under Sections 120B, Unified Access Service (for short ‘UAS’) Licences and
420, 468, 471 IPC and also punishable under Section 13(2) allocation of spectrum in the year 2007-08. Further, it was also
read with Section 13(1)(d) of the PC Act, against A. Raja and H H alleged that Shri P. Chidambaram was also complicit in fixing
[K.S. RADHAKRISHNAN, J.]
the price of the spectrum licence at 2001 level and permitting A A planning to do on 10.01.2008. Referring to several documents
two companies, which received the licence that is Swan Tele placed on record, it was pointed out that in fact Shri P.
Communication (P) Ltd. (for short ‘Swan’) and Unitech (T.N.) Chidambaram did not pay heed to the opinions expressed by
Ltd. (for short ‘Unitech’) and to dilute their shares even before the officials of his own Ministry and abeted to commit various
roll-out of their services. illegal acts.
B B
4. Learned Special Judge, after referring to the various 6. Dr. Swamy referred to various ingredients of Section
documents, produced found no substance in the allegations 13(1)(d)(iii) of PC Act and pointed out that a bare reading of
raised against Shri P. Chidambaram and found that he had no the above mentioned provision shows that mens rea or criminal
role in the subversion of the process of issuance of the LOI, intent was not an essential ingredient of that Section. Reference
UAS Licences and allocation of spectrum in the year 2007-08. was made to the judgment of this Court reported in Indo China
C C
Learned Judge concluded that there was no evidence on record Steam Navigation Co. v. Jasjeet Singh [1964(6) SCR 594],
that he was acting in pursuant to the criminal conspiracy, while State of Maharashtra v. Hans George [1965 (1) SCR 123] and
being party to the two decisions regarding non-revision of the R.S. Joshi, Sale s Tax Officer, Gujarat and Others v. Ajit Mills
spectrum pricing and dilution of equity by the two companies. Ltd. and Another [1977 (4) SCC 98] and submitted the ratio
Consequently, the prayer made for carrying out the investigation of above judgments indicate that certain criminal offences
against Shri P. Chidambaram and to make him an accused D D imposing punishment of incarceration need not require mens
was rejected vide order dated 04.02.2012, against which SLP rea instead strict liability as enumerated in the statute itself. Dr.
(Crl.) No. 1688 of 2012 has been filed. Swamy pointed out that the above mentioned statutory
provision would indicate that the emphasis is on “obtains” and
5. Dr. Swamy appeared in person and elaborately referred “public interest”. Dr. Subramanian Swamy submitted that the
to Annexure P-1 Final Report dated 03.04.2011 submitted by E E learned trial judge had failed to notice those vital aspects and
CBI before the Special Judge especially Para E, charge has wrongly rejected the prayer for conducting investigation
dealing with “Cheating the Government Exchequer by Non- against Shri P. Chidambaram and to array him as an accused.
Revision of Entry Fee”. Reference was also made to the
summary of his arguments raised before the Special Judge for 7. Shri Prashant Bhushan, learned counsel appearing for
carrying out investigation against Shri P. Chidambaram and to F F the applicants in I.A. No. 34 of 2012 has indicated the necessity
array him as an accused in the pending criminal case. of conducting a thorough investigation by the CBI into the role
Reference was also made to the meetings that Shri P. of the then Finance Minister Shri P. Chidambaram in the matter
Chidambaram had with Shri A. Raja on 30.01.2008, of fixing the spectrum pricing and allowing the sale of equity
29.05.2008, 12.06.2008 and later with the Prime Minister on by Swan and Unitech. Learned counsel pointed out that in that
04.07.2008 and submitted that in those meetings both of them
G G process, Shri P. Chidambaram had over-ruled the officers of
conspired together for a common object and purpose in fixing his own Ministry who favoured auction / market-based pricing
the pricing of spectrum at the year 2001 level and permitting of spectrum and instead allowed various companies to make
distribution equally by two companies Swan and Unitech. windfall profits. Further, it was also stated that he had allowed
Further, it was also pointed out that Shri P. Chidambaram was the above-mentioned companies to sell off their shares without
fully aware, at least, on 09.01.2008 as to what Shri A Raja was charging any Government’s share of its premium on account
H H
of spectrum valuation and without enforcing his own agreement A A the rate of revenue share, and also indicated the said note dealt
with the then Telecom Minister. with spectrum charges for 2G spectrum. Further, it was also
stated by Shri Prashant Bhushan that then Finance Minister and
8. Learned counsel made specific reference to para Shri A Raja had met on 30.01.2008 to discuss the issue of
2.1.2(3) and submitted that the Group of Ministers (GoMs) had licensing and spectrum pricing. In that meeting, then Finance
in their recommendation dated 30.10.2003 stated that the B B Minister had announced the issue of revising entry fee of 122
Department of Telecom (DoT) and the Ministry of Finance LOIs already issued by DoT and that they were not seeking to
(MoF) would discuss and finalise spectrum pricing formula revisit the current regimes for entry fee or for revenue share.
which would include incentive for efficient use of spectrum as
well as disincentive for suboptimal usages. Learned counsel 11. Shri Bhushan also referred to the approach paper by
pointed out that the above recommendation would clearly Department of Telecom Commission, which was forwarded by
C C
indicate that MoF officials were fully aware that unless such the Secretary, DoT to the Finance Secretary, MoF, which would
‘concurrence’ based on discussion and finalization of spectrum indicate that the officials of Finance Ministry were keen to stop
pricing formula between the DoT and the MoF had been the allocation of spectrum of 4.4 MHz and were suggesting the
established, the DoT could not have moved ahead and allocation of spectrum by way of auction.
spectrum could have been allocated at 2001 rates in the year
2007-08. D D 12. Learned counsel also referred to the sequel note to the
Department of Economic Affairs dated 11.02.2008 which
9. Learned counsel also referred to the “Position Paper on according to the learned counsel, would indicate that the MoF
Spectrum Policy” prepared by the Department of Economic had deferred from the position of DoT and stated that there was
Affairs (revised on 03.01.2008) which was forwarded along no contractual obligation to allot a start-up spectrum of 4.4 MHz
with covering letter dated 09.01.2008. The Telecom E E to every licencee free of cost and that the entire range of the
Commission meeting which was to take place on 09.01.2008 spectrum allotted should be priced and that the issue of level
was postponed to 15.01.2008. Further, it was pointed out that playing field could be addressed by charging the price even
before the scheduled meeting of the Telecom Commission on on existing operators. Learned counsel pointed out that in spite
15.01.2008, DoT had already issued 122 LOIs for UAS of objection raised by the officials of Ministry, the Finance
licenses on 10.01.2008 and that LOIs were converted into F F Minister acted in connivance with Shri A Raja and Shri A Raja
licenses during 27.02.2008 to 7.3.2008 and the spectrum went ahead and issued 122 licences which could have been
allocation was started from 22.4.2008 and completed prevented by Shri P. Chidambaram, had he stood with the
6.5.2009. Learned counsel pointed out that, the then Finance views of his officials.
Minister had enough time to stop the scam, since the price was
not fixed by the DoT and MoF as authorized by the GoMs 13. Learned counsel also referred to note dated
G G 07.04.2008 sent by the Finance Secretary after discussion with
(2003).
the Finance Minister wherein it was noticed that DoT was
10. Further, it was also stated that before the Telecom agreeable for pricing of spectrum beyond 4.4 MHz but wanted
Commission could meet, then Finance minister made a note that to be deferred till auction of 3G and WIMax was completed.
on 15.01.2008 to the Prime Minister of India pointing out that Reference was also made by the learned counsel to the note
the note did not deal with the need, if any, to revise entry fee or H H dated 03.04.2008 of the Additional Secretary (EA) and pointed
out that then Finance Minister had agreed that spectrum usage A A met on 29.05.2008 as well as on 12.06.2008. Learned counsel
charge should be increased reflecting the scarcity value of also pointed out that on 4.7.2008, the then Finance Minister,
spectrum as indicated in their note dated 11.02.2008. Further, Shri A Raja along with Finance Secretary met the Prime
the note also indicated the Finance Minister’s view that they Minister. By the time, LOIs were already issued which were
should insist, in principle, on pricing spectrum beyond 4.4 MHz converted to licences, allocation of start-up spectrum was
although details could be worked out after the auction of 3G B B started. Learned counsel also made reference to the CAG
spectrum. report and the pointed out the reference made to Shri P.
Chidambaram. Reference was also made to the briefing made
14. Shri Prashant Bhushan also referred to the Office by the Prime Minister, to the Media on 16.2.2011 and also the
Memorandum, MoF dated 8.4.2008 prepared by Shri Govind address made by the Prime Minister in Rajya Sabha on
Mohan, Director which, according to the learned counsel
C C 24.2.2011.
reflected the MoF’s original position of 11.2.2008 on the issue
of subjecting the entire spectrum to specific pricing. Learned 16. Learned counsel also pointed out that there was no
counsel alleged that the note issued was later withdrawn and justification, in any view, in allotting the start-up spectrum 4.4
the officer was reprimanded and a fresh Office Memorandum MHz to every licensee free of cost and submitted that the entire
was issued by the same Director. Learned counsel compared range of spectrum allotted should have been priced. Learned
the original Office Memorandum dated 08.04.2008 and the new D D counsel pointed out that one price of spectrum between 4.4
Office Memorandum and submitted that the original Office MHz and 6.2MHz and different price for spectrum between
Memorandum had required the entire range of spectrum to be beyond 6.2 MHz would be non-transparent and illegal. Learned
specifically priced and the revised Office Memorandum which counsel pointed out that in fact the MoF had initially objected
was prepared on 9.4. 2008 had presented with a date of the above stand of DoT but subsequently yielded after the
8.4.2008, specifically sought to exclude start-up spectrum upto E E meeting Shri P. Chidambaram had with Shri A Raja.
4.4 MHz from being specifically charged, ensuring the entry fee
of 2001 that was fixed by the then Telecom Minister in 2008, 17. Learned counsel pointed out all those facts which
was not revised. Shri Bhushan submitted that the officer had would clearly indicate that Shri P. Chidambaram the then
to apologize for his deeds and on 16.04.2008, the then Finance Finance Minister was also equally responsible. Non-revision of
Minister accepted the apology of the officer. F F spectrum price though specifically recommended by the GoMs
in the year 2003 would indicate, according to the counsel, that
15. Learned counsel also referred to letter dated 21.4. Shri P. Chidambaram colluded up with Shri A Raja in non-
2008 sent by the then Finance Minister to Shri A Raja and auctioning of the spectrum and went on for allotment of first
submitted that the spectrum issue “non paper” was silent on the come first served basis at 2001 rates. Further, it was also
issue of entry fee for start-up spectrum for 122 licences already G G pointed out that Shri P. Chidambaram had not revised his
issued and the discussion mainly concentrated on the charging position from giving away 4.4 MHz of spectrum at 2001 prices
for spectrum beyond 4.4 MHz. Reference was also made to the and giving away 6.2 MHz of spectrum at 2001, thus causing
Finance Secretary’s updated note dated 29.04.2008 which, huge loss to the exchequer. Further, he was also instrumental
according to the learned counsel, reflected the same position along with Shri A. Raja for allowing companies like Swan and
preferred by MoF. Both Shri A Raja and Shri P. Chidambaram Unitech to sell off their shares without charging any
H H
Government’s share of its premium. Counsel therefore prayed A A appreciate and understand the alleged involvement of Shri P.
for a direction of CBI to conduct a thorough investigation / further Chidambaram in the 2G Scam
investigation into the role of Shri P. Chidambaram in 2G
spectrum scam under the close scrutiny of this court. 20. The Telecom Regulatory Authority of India (for short
‘TRAI’), a statutory authority constituted under the Telecom
18. We heard Dr. Subramnian Swamy, appearing in Regulatory Authority of India Act, 1997 (for short “1997 Act”),
B B
person and Shri Prashant Bhushan, learned counsel at length. had made certain recommendations on 27.10.2003 on UAS
Arguments raised give rise to the following questions: Licence for the allocation of spectrum under Sections
11(1)(a)(i), (ii), (iv) and (vii) of the 1997 Act. Para 7.30 of the
(1) Whether Shri P. Chidambaram has conspired with
recommendations emphasized the necessity of efficient
Shri A Raja in fixing the price of the spectrum at
utilisation of spectrum by all service providers and indicated that
2001 level thereby committed the offence of criminal C C it would make further recommendations on efficient utilisation
misconduct.
of spectrum, spectrum pricing, availability and spectrum
(2) Whether Shri P. Chidambaram by corrupt and allocation procedure and that the DoT might issue spectrum
illegal means obtained for himself or for Shri Raja related guidelines based on its recommendations.
any valuable thing or pecuniary advantage.
D D 21. A GoMs was constituted on 10.9.2003 with the
(3) Whether Shri P. Chidambaram has deliberately approval of the then Prime Minister to consider various issues
allowed dilution of equity by Swam Telecom Pvt. as to how to ensure release of adequate spectrum for the
Ltd. and Unitech Wireless (Tamil Nadu) Ltd. at the telecom sector, including the issues relating to merger and
cost of public exchequer. acquisition in the telecom sector and to recommend how to
E E move forward. GoMs made detailed recommendations on
(4) Whether Shri P. Chidambaram has conspired with
30.10.2003. Para 2.1.2(3) of the recommendations reads as
Shri A. Raja in fixing one price of spectrum
follows:
between 4.4 MHz and 6.2 MHz and another price
for spectrum beyond 6.2 MHz for unlawful gain, for “(3) The Department of Telecom and Ministry of
benefiting the licensees. Finance would discuss and finalise spectrum pricing
F F formula which will include incentive for efficient use of
(5) Whether the above mentioned acts fall within the
scope of Section 13(1)(d)(i) to (ii) of the P.C. Act spectrum as well as disincentive for sub-optimal usages.”
and the materials on record are sufficient to Para 2.1.2(4) stated that the allotment of additional
conclude so. spectrum would be transparent, fair and equitable, avoiding
19. Shri P. Chidambaram was the Finance Minister of the G G monopolistic situation regarding spectrum allotment usage.
Union of India from 22.5.2004 to 31.11.2008. Brief reference Para 2.4.6(ii) of the recommendations reads as follows:
to facts prior to 22.5.2004 has already been made by this Court
“(ii) The recommendations of TRAI with regard to
in its judgment in Centre for Public Interest Litigation and
implementation of the Unified Access Licensing Regime
Others etc. v. Union of India and Others (2012) 3 SCC 1 and
for basic and cellular services may be accepted.”
hence not repeated, but reference to few facts is necessary to H H
22. The recommendations of the GoMs were accepted by A A the 1997 Act on the issues of limiting the number of access
the Council of Ministers on 31.10.2003, the meeting of which providers in each service area and for the review of the terms
was chaired by the then Prime Minister. The then Minister of and conditions in the access provider licence mentioned in the
Communications on 24.11.2003 accepted the letter. Shri Dayanidhi Maran had by the time resigned on
recommendations that entry fee for new UAS licensees would 14.5.2007 and Shri A. Raja became the Minister for
be the entry fee of the fourth cellular operator and where there B B Telecommunications on 16.5.2007.
was no fourth cellular operator, it would be the entry fee fixed
by the Government for the basic operator. A decision was also 25. TRAI made its recommendations on 28.8.2007. One
taken by the then Minister for Communications for the grant of of the recommendations made by TRAI was that in future all
spectrum licenses on first-come-first served basis. Shri spectrums excluding the spectrum in 800, 900 and 1800 MHz
Dayanidhi Maran became the Minister for Telecommunications C C bands in 2G services should be auctioned. Para 2.73 of the
on 26.5.2004. recommendations is of some importance and hence extracted
hereunder:
23. TRAI later made comprehensive recommendations on
13.5.2005 on various issues relating to spectrum policy i.e. “2.73. .............The Authority in the context of 800, 900
efficient utilisation of spectrum, spectrum allocation, spectrum D D and 1800 MHz is conscious of the legacy i.e. prevailing
pricing, spectrum charging and allocation for other terrestrial practice and the overriding consideration of level playing
wireless links. On 23.2.2006, the Prime Minister approved the field. Though the dual charge in present form does not
constitution of a GoMs consisting of the Minister of Defence,
reflect the present value of spectrum it needed to be
Home Affairs, Finance, Parliamentary Affairs, Information and
continued for treating already specified bands for 2G
Broadcasting and Communications, to look into issues relating
E E services i.e. 800, 900 and 1800 MHz. It is in this
to vacation of spectrum. Deputy Chairman, Planning
Commission was a special invitee. The Terms of Reference of background that the Authority is not recommending the
GoMs, inter alia, suggested a spectrum pricing policy. Shri standard options pricing of spectrum, however, it has
Dayanidhi Maran, the then Minister of Telecommunications elsewhere in the recommendation made a strong case for
wrote a letter dated 28.2.2006 to the Prime Minister indicating adopting auction procedure in the allocation of all other
that the terms of reference of the GoMs would impinge upon F F spectrum bands except 800, 900 and 1800 MHz.”
the work of his Ministry since wider in scope and requested that
they be modified in accordance with the draft enclosed along Paras 2.74, 2.75, 2.76, 2.77, 2.78 and 2.79 are also
with his letter. The draft forwarded by the Minister, however, did relevant for determining the various issues which arise for
not contain any formula for spectrum pricing. However, on consideration in this case and hence given below for ready
7.12.2006, the Cabinet Secretary conveyed the approval of the G G reference:
Prime Minister to the modified terms of reference which did not
contain any formula for spectrum pricing. “2.74 Some of the existing service providers have
already been allocated spectrum beyond 6.2 MHz in GSM
24. DoT, later, vide its letter dated 13.4.2007 requested and 5 MHz in CDMA as specified in the license
TRAI to furnish its recommendations under Section 11(1)(a) of H H agreements without charging any extra one time spectrum
charges. The maximum spectrum allocated to a service A A The Authority feels it appropriate to go in for
provider is 10 MHz so far. However, the spectrum usage additional acquisition fee of spectrum instead of placing
charge is being increased with increased allocation of a cap on the amount of spectrum that can be allocated to
spectrum. The details are available at Table 8. any wireless operator. In any case, the Authority is
recommending a far stricter norm of subscriber base for
2.75 The Authority has noted that the allocation allocation of additional spectrum beyond the initial
B B
beyond 6.2 MHz for GSM and 5 MHz for CDMA at allotment of spectrum. The additional acquisition fee
enhanced spectrum usage charge has already been beyond 10 MHz could be decided either administratively
implemented. Different licensees are at different levels of or through an auction method from amongst the eligible
operations in terms of the quantum of spectrum. Imposition wireless service providers. In this matter, the Authority has
of additional acquisition fee for the quantum beyond these taken note of submissions of a number of stakeholders
C C
thresholds may not be legally feasible in view of the fact who have cited evidences of the fulfillment of the quality of
that higher levels of usage charges have been agreed to service benchmarks of the existing wireless operators at
and are being collected by the Government. Further, the 10 MHz and even below in almost all the licensed service
Authority is conscious of the fact that further penetration areas. Such an approach would also be consistent with the
of wireless services is to happen in semi-urban and rural Recommendation of the Authority in keeping the door
areas where affordability of services to the common man D D
open for new entrant without putting a limit on the number
is the key to further expansion. of access service providers.
2.76 However, the Authority is of the view that the 2.77 The Authority in its recommendation on
approach needs to be different for allocating and pricing “Allocation and pricing of spectrum for 3G and broadband
spectrum beyond 10 MHz in these bands i.e. 800, 900 and E E wireless access services” had recommended certain
1800 MHz. In this matter, the Authority is guided by the reserve price for 5 MHz of spectrum in different service
need to ensure sustainable competition in the market areas. The recommended price are as below:
keeping in view the fact that there are new entrants whose
subscriber acquisition costs will be far higher than the Service areas Price (Rs. in million)
incumbent wireless operators. Further, the technological F F for 2 MHz x 5 MHz
progress enables the operators to adopt a number of
technological solutions towards improving the efficiency of Mumbai, Delhi and 800
the radio spectrum assigned to them. A cost-benefit Category A
analysis of allocating additional spectrum beyond 10 MHz
to existing wireless operators and the cost of deploying Chennai, Kolkata and 400
G G Category B
additional CAPEX towards technical improvements in the
networks would show that there is either a need to place
a cap on the maximum allocable spectrum at 10 MHz or Category C 150
to impose framework of pricing through additional
acquisition fee beyond 10 MHz. The Authority recommends that any licensee who
H H seeks to get additional spectrum beyond 10 MHz in the
existing 2G bands i.e. 800,900 and 1800 MHz after A A “Allocation and pricing of spectrum for 3G and broadband
reaching the specified subscriber numbers shall have to wireless access services” has also favored auction
pay a onetime spectrum charge at the above mentioned methodology for allocation of spectrum for 3G and BWA
rate on prorata basis for allotment of each MHz or part services. It is therefore recommended that in future all
thereof of spectrum beyond 10 MHz. For one MHz spectrum excluding the spectrum in 800, 900 and 1800
allotment in Mumbai, Delhi and Category A service areas, B B bands should be auctioned so as to ensure efficient
the service provider will have to pay Rs. 160 million as one utilization of this scarce resource. In the 2G bands (800
time spectrum acquisition charge. MHz/900 MHz/1800 MHz), the allocation through auction
may not be possible as the service providers were
2.78 As far as a new entrant is concerned, the question allocated spectrum at different times of their license and
arises whether there is any need for change in the pricing the amount of spectrum with them varies from 2X4.4 MHz
C C
methodology for allocation of spectrum in the 800, 900 and to 2X10 MHz for GSM technology and 2X2.5 MHz to 2X5
1800 MHz bands. Keeping in view the objective of growth, MHz in CDMA technology. Therefore, to decide the cut off
affordability, penetration of wireless services in semi-urban after which the spectrum is auctioned will be difficult and
and rural areas, the Authority is not in favour of changing might raise the issue of level playing field.”
the spectrum fee regime for a new entrant. Opportunity for
equal competition has always been one of the prime D D 26. The Internal Committee of DoT considered the above
principles of the Authority in suggesting a regulatory recommendations made by TRAI and its report was placed
framework in telecom services. Any differential treatment before the Telecom Commission on 10.10.2007. The Finance
to a new entrant vis-a-vis incumbents in the wireless sector Secretary and other three non-permanent members were not
will go against the principle of level playing field. This is informed of that meeting, but attended only by the officials of
specific and restricted to 2G bands only i.e. 800, 900 and E E DoT and the report of the Internal Committee was approved by
1800 MHz. This approach assumes more significance the Telecom Commission. Shri A. Raja accepted the
particularly in the context where subscriber acquisition cost recommendations of Telecom Commission. Consequently, the
for a new entrant is likely to be much higher than for the recommendations of TRAI dated 28.8.2007 stood approved by
incumbent wireless operators. the Internal Committee of DoT, Telecom Commission and DoT.
F F DoT, it may be noted, did not get in touch with the Ministry of
2.79 In the case of spectrum in bands other than 800, Finance to discuss and finalise the spectrum pricing formula
900 and 1800 MHz i.e. bands that are yet to be allocated, which had to include incentive for efficient use of spectrum as
the Authority examined various possible approaches for well as disincentive for suboptimal usage in terms of the
pricing and has come to the conclusion that it would be Cabinet decision of 2003.
appropriate in future for a market based price discovery
G G
systems. In response to the consultation paper, a number 27. Above facts would indicate that neither Shri P.
of stakeholders have also strongly recommended that the Chidambaram nor the officials of MoF had any role in the
allocation of spectrum should be immediately de-linked various decisions taken by TRAI on 28.8.2007, decision taken
from the license and the future allocation should be based by the Internal Committee of DoT and the decision of the
on auction. The Authority in its recommendation on Telecom Commission taken on 10.10.2007.
H H
28. DoT then went ahead to process applications received A A “3. Processing of a large number of applications
for UAS licences. Between 24.9.2007 and 1.10.2007, over 300 received for fresh licenses against the backdrop of
applications were received. The Member (Technology), inadequate spectrum to cater to overall demand
Telecom Commission and ex-officio Secretary to the
Government of India sent a letter dated 26.10.2007 to the The issue of auction of spectrum was considered by
Secretary, Department of Legal Affairs, Ministry of Law and B B the TRAI and the Telecom Commission and was not
Justice seeking the opinion of the Attorney General of India/ recommended as the existing licence holders who are
Solicitor General of India for dealing with those applications for already having spectrum upto 10 MHz per Circle have got
licences. The Law Secretary placed the papers before the it without any spectrum charge. It will be unfair,
Minister of Law and Justice on 1.11.2007 who had discriminatory, arbitrary and capricious to auction the
recommended that the entire issue be considered by an C spectrum to new applicants as it will not give them level
C
Empowered GoMs and, in that process, opinion of the Attorney playing field.
General of India be obtained. When the note of the Law Minister
I would like to bring it to your notice that DoT has
was placed before Shri A. Raja, he recorded a note on
earmarked totally 800 MHz in 900 MHz and 1800 MHz
2.11.2007 calling for discussion. Shri A. Raja, however, on the
bands for 2G mobile services. Out of this, so for a
same day, ordered the issuance of LoIs to new applicants as D D maximum of about 35 to 40 MHz per Circle has been
per the then existing policy and authorised Shri R. K. Gupta,
allotted to different operators and being used by them. The
ADG (AS-1) for signing the LoIs on behalf of the President of
remaining 60 to 65 MHz, including spectrum likely to be
India. Shri A. Raja had also ordered for the issuance of LoI to
vacated by Defence Services, is still available for 2G
the applicants whose applications had been received up to
services.
25.9.2007 and also sent a letter bearing DO No. 20/100/2007-
E E
AS-I dated 2.11.2007 to the Prime Minister and took strong Therefore, there is enough scope for allotment of
objection to the suggestion made by the Law Minister by spectrum to few new operators even after meeting the
describing his opinion as totally out of context. requirements of existing operators and licensees. An
increase in number of operators will certainly bring real
29. The Prime Minister, however, vide his letter dated
competition which will lead to better services and
2.11.2007 had requested Shri A. Raja to give urgent F F
increased teledensity at lower tariff. Waiting for spectrum
consideration to the various issues raised with a view to
for long after getting licence is not unknown to the Industry
ensuring fairness and transparency and requested him to inform
and even at present Aircel, Vodafone, Idea and Dishnet
the Prime Minister of the position before taking any further
are waiting for initial spectrum in some Circles since
action. On the same day, Shri A.Raja sent a reply to the Prime
December 2006.”
Minister brushing aside the suggestions made by the Prime G G
Minister pointing out that it would be unfair, discriminatory, 30. Shri P. Chidambaram, it is seen, had no role in the
arbitrary and capricious to auction the spectrum to new exchange of those communications or the expression of
applicants as it would not give them a level playing field. The opinions of the decisions taken between Shri A. Raja and the
relevant portion of Para 3 of Shri A. Raja’s letter is extracted Prime Minister’s Office, a situation created by Shri A. Raja and
below: H H the officials of DoT. Neither Shri P. Chidambaram nor the
officials of the MoF did figure in those communications and A A cellular services may be accepted. DoT may be authorized
hence the allegation of involvement of Shri P. Chidambaram to finalize the details of implementation with the approval
in the 2G Scam has to be examined in that background. of the Minister of Communications and IT in this regard
including the calculation of the entry fee depending on the
31. The Secretary, DoT made a presentation of the date of payment based on the principle given by TRAI in
spectrum policy on 20.11.2007 to the Cabinet Secretary. B B its recommendations…….”
Finance Secretary, Dr. Subbarao, who had witnessed the
presentation sent a letter dated 22.11.2007 to the Secretary, 33. DoT also pointed out in that letter that the entry fee was
DoT to know whether proper procedure had been followed with also finalised for UAS regime in 2003 based on the decision
regard to financial diligence. The operative portion of the letter of the Cabinet and it was decided to keep the entry fee for the
reads as follows: UAS license the same as the entry fee of the fourth cellular
C C operator, which was based on a bidding process in 2001.
“2. That purpose of this letter is to confirm if proper Further, it was also pointed out that the dual technology licenses
procedure has been followed with regard to financial were licenses based on TRAI recommendations of August
diligence. In particular, it is not clear how the rate of 2007 and that TRAI in its recommendations dated 28.8.2007
Rs.1600 crore, determined as far back as in 2001, has had not recommended any changes in entry fee/ annual license
been applied for a license given in 2007 without any D D fee and hence no changes were considered in the existing
indexation, let alone current valuation. Moreover, in view policy.
of the financial implications, the Ministry of Finance should
have consulted in the matter before you had finalized the 34. Shri A. Raja then sent a letter dated 26.12.2007 to the
decision. Prime Minister, Paras 1 and 2 of that are extracted below:
E E
3. I request you to kindly review the matter and revert “1. Issue of Letter of Intent (LOI): DOT follows a policy
to us as early as possible with responses to the above of First-cum-First Served for granting LOI to the applicants
issues. Meanwhile, all further action to implement the for UAS licence, which means, an application received first
above licenses may please be stayed. Will you also kindly will be processed first and if found eligible will be granted
send us copies of the letters of permission given and the LOI.
F F
date?”
2. Issue of Licence: The First-cum-First Served
32. DoT replied to the Finance Secretary vide letter dated policy is also applicable for grant of licence on compliance
29.11.2007. the operative portion of the same reads as follows: of LOI conditions. Therefore, any applicant who complies
with the conditions of LOI first will be granted UAS licence
“As per Cabinet decision dated 31st October, 2003, G G first. This issue never arose in the past as at one point of
accepting the recommendations of Group of Ministers time only one application was processed and LOI was
(GoM) on Telecom matters, headed by the then Hon’ble granted and enough time was given to him for compliance
Finance Minister, it was inter alia decided that “The of conditions of LOI. However, since the Government has
recommendations of TRAI with regard to implementation adopted a policy of “No Cap” on number of UAS Licence,
of the Unified Access Licensing Regime for basic and H a large number of LOI’s are proposed to be issued
H
simultaneously. In these circumstances, an applicant who A A 37. Another press release was issued on 10.1.2008 by
fulfils the conditions of LOI first will be granted licence first, DoT requesting the applicants to submit compliance with the
although several applicants will be issued LOI terms of LoIs. Soon after obtaining the LoI, three of the
simultaneously. The same has been concurred by the successful applicants offloaded their stakes for thousands of
Solicitor General of India during the discussions.” crores in the name of infusing equity, the details are as under:
DDG (AS), DoT, after a few days, prepared a note B B
“(i) Swan Telecom Capital Pvt. Ltd. (now known as
incorporating therein the changed first-come-first-served
Etisalat DB Telecom Pvt. Ltd.) which was incorporated on
policy to which reference was made in the letter addressed
13.7.2006 and got UAS Licence by paying licence fee of
to the Prime Minister.
Rs. 1537 crores offloaded its 45% (approximate) equity
35. We have no information as to whether the PMO had C C in favour of Etisalat of UAE for over Rs.3,544 crores.
replied to the letter dated 26.12.2007 sent by A. Raja. After
brushing aside the views expressed by Dr. D. Subbarao in his (ii) Unitech which had obtained licence for Rs.1651
letter dated 22.11.2007, views expressed by the Minister of crores offloaded its stake 60% equity in favour of Telenor
Law and Justice on 1.11.2007, as well as the views expressed Asia Pte. Ltd., a part of Telenor Group (Norway) in the
by the Prime Minister on 2.11.2007, A. Raja and the officials name of issue of fresh equity shares for Rs.6120 crores
D D between March, 2009 and February, 2010.
of DoT went ahead in implementing the policy of first-come-
first-served basis for the grant of UAS licenses for which it is
seen, no further objection had been raised by the Prime (iii) Tata Tele Services transferred 27.31% of equity
Minister’s Office. worth Rs. 12,924 crores in favour of NTT DOCOMO.
36. Telecom Commission meeting was then scheduled to E E (iv) Tata Tele Services (Maharashtra) transferred
be held on 9.1.2008 to consider two important issues i.e. 20.25% equity of the value of Rs. 949 crores in favour of
performance of telecom sector and pricing of spectrum but the NTT DOCOMO.”
meeting was postponed to 15.1.2008. But, on 10.1.2008, a
press release was issued by DoT stating that TRAI on 38. Materials made available would not indicate any role
28.8.2007 had not recommended any cap on the number of F F played by Shri P. Chidambaram on the steps taken by Shri A.
access service providers in any service area. Further, it was Raja and DoT, reference of which have elaborately been made
also stated that the Government had accepted the in the previous paragraphs of this judgment. The views
recommendations of TRAI and that DoT had decided to issue expressed by Dr. D. Subbarao in his letter dated 22.11.2007
LoIs to all the eligible applicants on the date of application who were already brushed aside by A. Raja and DoT officials and
applied up to 25.9.2007. Further, it was also stated in the press a communication dated 29.11.2007 was already sent to Dr.
G G
release that DoT had been implementing a policy of first-come- Subbarao followed by a letter to the Prime Minister on
first-served for grant of UAS licences under which initially an 26.12.2007.
application which was received first would be processed first
and thereafter if found eligible would be granted LoI and then 39. MoF then sent a letter on 9.1.2008, following the letter
whosoever complied with the conditions of LoI first would be of Dr. D. Subbarao dated 22.11.2007 as well as the reply
granted UAS licence. H H
received from DoT on 29.11.2007, which was prepared and A A hand, Shri P. Chidambaram was advocating the fact that the
sent as instructed by Shri P. Chidambaram for presentation in most important method of allocating the spectrum would be
the meeting of the Telecom Commission which was held on through auction. Shri P. Chidambaram also made a reference
10.1.2008. Note referred to the recommendations of GoMs for in the note of the recommendations made in the year 2003 by
discussing and finalizing the spectrum pricing formula by DoT TRAI and GoMs and stated that the recommendations note did
and Ministry of Finance. Paras 6.3 and 8.4 of the note which B B not deal with the need, if any, to revise entry fee or the rate of
was prepared as instructed by Shri P. Chidambaram are revenue share, but dealt with the spectrum charges for 2G
relevant and hence are extracted hereunder: spectrum. Para 10 of the note sent by Shri P. Chidambaram
reads as follows:
“6.3 Given the fact that there are reportedly over 575
applications pending with DoT (including 45 new “10. Spectrum is a scarce resource. The price for spectrum
C C
applicants) there is a case for reviewing the entry should be based on its scarcity value and efficiency of
fee fixed in 2001. This is an administratively fixed usage. The most transparent method of allocating
fee. Therefore any change should be governed by spectrum would be through auction. The method of auction
transparent and objective criteria applicable will face the least legal challenge, if Government is able
uniformly to all new entrants. to provide sufficient information on availability of spectrum,
D D that would minimise the risks and, consequently, fetch
8.4 The most transparent method of allocation of better prices at the auction. The design of the auction
spectrum would be by auction. However, there are should include a reserve price.”
two caveats to the auction method.
Further, para 13 of the note reads as follows:
(a) The ways in which the existing licensees in E E
GSM and CDMA would be eligible to participate “13. This leaves the question about licensees who hold
in the auction vis-a-vis the new entrants; and spectrum over and above the start up spectrum. In such
cases, the past may be treated as a closed chapter and
(b) The advantages and disadvantages of the payments made in the past for additional spectrum (over
method itself. A detailed table is placed at and above the start up spectrum) may be treated as the
Annexure V.” F F charges for spectrum for that period. However,
prospectively, licensee should pay for the additional
40. Shri P. Chidambaram, following the views expressed
spectrum that they hold, over and above the start-up
by the Ministry of Finance on 9.1.2008, on his instructions, also
spectrum, at the price discovered in the auction. This will
sent a note to the Prime Minister on 15.1.2008 on spectrum
place old licensees, existing licensee seeking additional
charges. Noticeably, this letter was sent at a time when Finance G G spectrum and new licensees on par so far as spectrum
Secretary’s view was rejected by Shri A. Raja and the officers
charges are concerned.”
of the DoT and that Shri A. Raja’s views were not overturned
even by the Prime Minister’s Office. Therefore, the allegation Shri P. Chidambaram had indicated his mind in the note
that the attempt of Shri P. Chidambaram was to hide the sent to the Prime Minister.
illegalities in the award of licences is unfounded. On the other H H
41. Prime Minister’s Office, it is seen, had not taken any A A in the trade?
contrary view to that of Shri P. Chidambaram and, in any view,
(iii) The estimate of the additional spectrum that may
no materials were also made available when this Court was
be available for allocation after taking into account:
dealing with the case relating to cancellation of licences,
(a) the entitlement of entry spectrum of fresh
wherein Union of India was a party. In such circumstances, it is
licenses; (b) the spectrum that needs to be
difficult to conclude, on the materials available, that P. B B withdrawn from existing operators who do not have
Chidambaram had conspired with A. Raja in subverting the
the subscriber base corresponding to the spectrum
process of issuance of LoI, UAS Licences and allocation of
allotted to them; and (c) the spectrum that may be
spectrum.
released by Defence.
42. Shri P. Chidambaram met Shri A. Raja on 30.1.2008
C C (iv) We also need to check the current rules and
for discussions on spectrum charges and one has to appreciate
regulations governing withdrawal of spectrum in the
the discussions held in the light of the facts discussed above.
event of: (a) not rolling over; (b) merger and
Meeting was held at a time, it may be noted, when Shri A. Raja
acquisition; (c) trading away spectrum.”
and DoT officials had already brushed aside the views
expressed by Dr. D. Subbarao in his letter dated 22.11.2007, Salient points discussed in the meeting held on 30.1.2008
the views expressed by the Department of Economic Affairs D D are given below:
in the note dated 3.1.2008 and in the absence of any response
from PMO on the note dated 15.1.2008 sent by Shri P. “2. pectrum Usage Charges for Initial allotment of
Chidambaram. Meeting dated 30.1.2008 and subsequent spectrum of 4.4 MHz.
meetings Shri P. Chidambaram had with Shri A. Raja on
29.5.2008, 12.6.2008 and with the Prime Minister on 4.7.2008 2.1 Secretary (Finance) was of the opinion that auctioning
E E
is legally possible for initial allotment of spectrum of 4.4
have to be appreciated in the light of the facts already
discussed. MHz. Secretary (DoT) explained that auction of spectrum
of 4.4 MHz though may be legally possible but it would not
43. Shri P. Chidambaram, it is seen under the above- be practical proposition to auction or fixing a price for 4.4
mentioned circumstances, had taken up the stand in the MHz spectrum due to following:
meeting held on 30.1.2008 that the Finance Minister was not F F
seeking to revisit the current regimes for entry fee or for revenue 2.1.1 As per clause 43.5 (i) of UAS License, which
share and for the regime for allocation of spectrum, however, provides that:
it was urged that the following aspects had to be studied:
“initially a cumulative maximum of up to 4.4 MHz +4.4 MHz
“(i) The rules governing the allocation of additional G G shall be allocated in the case of GSM based systems….”
spectrum and the charges thereof, including the
charges to be levied for existing operators who It implies that when a service provider signs UAS
have more than their entitled spectrum. License he understands that and contractually he is eligible
for initially a cumulative maximum of 4.4 MHz subject to
(ii) Rules governing trade in spectrum. In particular, availability.
how can Government get a share of the premium H H
2.1.2 20 LoIs have been issued and the Department is A A of 1.8 MHz would not be practical due to following:
contractually obliged to give them start up spectrum of 4.4.
MHz under UASL. 3.1.1 As per clause 43.5(ii) of UAS License which
provided that “Additional spectrum beyond the 4.4 MHz
2.1.3 As auctioning does not assure the operators to get may also be considered for allocation after ensuring
initial spectrum of 4.4 MHz as per UAS License provision, B B optimal and efficient utilization of the already allocated
auctioning and the clause 43.5 (i) of the UASL are spectrum taking into account of all types of traffic and
contradictory. guidelines / prescribed from time to time. However 6.2 +
6.2 MHz in respect of TDMA (GSM) based system shall
2.1.4 If the new entrants get spectrum by auctioning, they be allocated to any new Unified Access Services
may be paying more as compared to the existing players. Licensee”.
C C
Hence (a) auction will not ensure level playing; (b) also, as
the cost to the new entrants would be more, they may not 3.1.2 It implies that an operator is eligible for
be able to offer competitive tariff. consideration of additional 1.8 MHz spectrum (making total
of 6.2 MHz) after ensuring optimal and efficient utilization
2.1.5 Also 4.4. MHz is a part of the license agreement; no of the already allocated spectrum taking into account all
spectrum acquisition charge is proposed to be levied. D D types of traffic and guidelines / criteria prescribed from time
Even if it is priced, it will also disturb the level playing field to time.
and the present LOI holders, who have already paid entry
fee, are likely to go for litigation. Initial entry fee for license 3.1.3 The matter was internally discussed with
may be construed as the defector price of initial spectrum Solicitor General, who opined that he is defending the
i.e. Rs.1650 crore approximately for pan-India license.” E E Government cases in various courts, where one of the
main contentions is that auction would lead to reduction
Para 3 of the Approach Letter deals with the spectrum of competition and will not help in reducing the tariff and
usage charges for additional spectrum of 1.8 MHz beyond 4.4. hence it would be against increase of teledensity and
MHz. The relevant portion of para 3 is extracted below: affordability. These being public interest concerns, it would
F F be difficult to change the track at this juncture.
“3. Spectrum Usage Charges for additional spectrum
of 1.8 MHz beyond 4.4 MHz 3.1.4 It is, however, proposed to price the spectrum
of 1.8 MHz beyond 4.4 MHz upto 6.2 MHz. The TRAI in its
The issue of levying price for additional spectrum of 1.8 report of August 2007 has recommended that any licensee
MHz beyond 4.4 MHz including auctioning was also G G who seeks to get additional spectrum beyond 10 MHz in
discussed. Secretary (Finance) desired to know whether the existing 2G bands, i.e. 800, 900 and 1800 MHz after
this additional spectrum can be priced / auctioned and if reaching the specified subscriber numbers shall have to
not then why. pay a onetime spectrum charge at the below mentioned
rates on pro-rata basis for allotment of each MHz or part
3.1 The issue of levying price for additional spectrum thereof of spectrum beyond 10 MHz…….”
H H
Para 4 of the Approach Paper deals with the price of A A . After this allotment, hardly any identifiable free
spectrum beyond 6.2 MHz. Relevant portion of para 4 spectrum will be available, which is a pre-requisite
reads as under: for auction.
“4. Price of spectrum beyond 6.2 MHz . At any given time one or two operators will be
eligible for beyond 6.2 MHz based on the
The UASL does not explicitly provide any provision B B
subscribers linked criteria. Hence if an auction is
or spectrum beyond 6.2 MHz and upto 10 MHz, however to be held, competition would be limited.
the UASL clause 43.5(iv) provides that “the Licensor has
right to modify and / or amend the procedure of allocation . Hence auctioning may not be successful in
of spectrum including quantum of spectrum at any point of providing optimum value due to (a) limited
time without assigning any reason”. Hence the spectrum C C availability of spectrum & (b) limited competition.
beyond 6.2 MHz should be properly priced keeping in mind
the market value of spectrum. TRAI has also not recommended for auctioning of 2G
spectrum in view of the following:
4.1 Auction Path:
· Service providers were allocated spectrum at
Since we are not auctioning startup spectrum of 4.4 D D different times of their licenses and the amount of
MHz and only pricing additional allocation of 1.8 MHz as spectrum with them. Therefore, to decide the cut off
explained earlier, therefore, we can take 6.2 MHz as after which spectrum is auctioned will be difficult and
threshold for consideration for auction as this also falls might raise issue of level playing field.
beyond the provisions of the license agreement. The
following points are brought out: E E · Penetration of mobile service is to happen in semi
urban and rural areas, where affordability of the
. 2G GSM Spectrum bands are 890-915 MHz paired services to the common man is the key for further
with 935-960 MHz, 1710-1755 MHz paired with expansion:
1805-1890 MHz i.e., 2.5 MHz is available in 900 &
75 MHz band is available in 1900 MHz band In view of all these factors, auction 2G spectrum at this
F F
making a total of 100 MHz. Out of this more than juncture does not appears to be viable solution.”
37 MHz stand allocated to the GSM service
4.2 Fix Price for spectrum beyond 6.2 MHz
providers in different service areas. Remaining 63
MHz, major portion of the spectrum in 1800 MHz The following two options were considered:
band is being used by Defence. G G
Option 1
. 120 LOIs have been issued and startup spectrum
is to be allotted to them as well as for the growth; For this purpose it may be desirable to index, the entry fee
existing operators should be given 6.2 MHz, subject of Rs.1650 crores in the year 2003-04 (for initial 4.4 MHz)
to availability. i.e. Rs.375 crore per MHz, for inflation, potential for growth
H H of tele-density and revenue etc. appropriately. If we take
an inflation of about 5% per year for 4 years upto 2007- A A 6.1 In view of this, we need to have clear guidelines relating
08, which would mean about 20% compounded inflation to M&A. We also need to consider fees on account of
till 2007. Therefore, additional charges can be levied at transfer of spectrum to the merged entity. In the event of
20% of Rs.375 crores for one MHz of spectrum i.e. Rs.425 M&A the transfer charge to the Government has not been
Crores. considered by TRAI in their recommendation of August
B B 2007. This is a complex issue requiring detailed
This option is not favoured in view of the low value of deliberation and consultation. Therefore, the issue of
spectrum. quantum of fees which the Government would get on
Option 2 account of transfer of spectrum during M&A needs to be
referred to TRAI. Based on the Recommendations of TRAI
The service area wise AGR figures per MHz for the years C C on the above issue, DoT will take appropriate decision with
2003-04, and anticipated figure were calculated and is a specified time period and issue clear and transparent
given at Annexure 1. It may be seen that there is an guidelines for M&A including transfer charges for
increase of about 3-5 times, if the figures of 2007-08 with spectrum.”
2003-04 is compared.
44. The Secretary, DoT then vide letter dated 8.2.2008,
It is for consideration to charge ‘x’ times of base price of D D forwarded the Approach Paper with regard to the meeting held.
Rs.375 crore/MHz, where ‘x’ is to be decided. This will be Minister of Finance vide note dated 11.2.2008, acknowledged
charged to existing as well as new entrants. Those who the note dated 8.2.2008 which was the summary of the four
decide not to pay may be asked to surrender the excess rounds of discussion they had and a Sequal note setting out
spectrum beyond 6.2 MHz.” the then existing position regarding telecom fees and charges
E E and pricing of spectrum and the issues for decision were high-
Para 6 deals with the Merger and Acquisition (M&A) is lighted.
also relevant and the same reads as under:
Paras 16 to 18 of the Sequal note read as under:
6. Mergers and Acquisition (M&A)
“Auction of Spectrum
In the context of intra-circle merger and acquisition, F F
TRAI in their report of August 2007 have considered 16. Auctioning spectrum suggests itself is as a clear first
various factors, namely Definition of Market Assessment choice. It has several merits.
of Market Power criteria and Methodology, Determination
of minimum number of access service providers in a post (i) Best method of discovering price
merger scenario and spectrum cap of the merged entity. G G
(ii) Is more transparent and provides a level
The TRAI Recommendations had been considered by playing field
Telecom Commission. Some of the issues have been
referred back to TRAI for consultation. In view of very large (iii) Promotes competition
number of new players, it is expected that consolidation
is likely to take place in the industry in future. H H 17. However, it will be problematic for us to adopt the
auction route at this late stage mainly for ‘historical legacy’ A A options for determining the current price of spectrum.
reasons. A number of operators have already been given
spectrum free of charge. The spectrum available for On the question of pricing of spectrum beyond 4.4 MHz,
auction, therefore, will be quite limited (DoT has not been the views expressed by the Ministry of Finance in the above
able to indicate the precise quantum of spectrum that will letter read as follows:
be available for allotment). Efficient price discovery B B 28. DoT is of the view that it is not advisable / possible to
becomes possible only if the supply is large and there are
price the start-up allocation of a 4.4 MHz on the following
a number of potential buyers: a thin market has clear
argument. Allocation of 4.4 MHz spectrum is part of the
limitation in signalling a price. It may turn out that the
licence Agreement. This start-up spectrum was given free
‘discovered price’ is either too low or too high. In its August
of cost in the past. The new entrants who were given
2007 report (para 2.79), TRAI too advised against C C licenses in January 2008 paid the entry fee on the
auctioning of spectrum on the ground that it will trigger
understanding that they would get this start-up spectrum
issues of level playing field.
would be a breach of this understanding. It will also disturb
18. Auction will be viable if we can increase the quantum the level playing field between the existing operators and
of spectrum available. This can be done by withdrawing the new licencees. This may also trigger litigation.
the spectrum already allotted to existing operators and D D
29. DoT is agreeable to pricing of spectrum beyond
putting all of it on auction. Both existing and new license
4.4MHz. However, they have suggested a differentiated
will then bid on a clean slate. This is evidently an extreme
pricing regime. According to them, there should one price
measure, and has significant practical and legal
of spectrum between 4.4 MHz and 6.2 MHz (1.8 MHz), and
implications.”
E E another price for spectrum beyond 6.2 MHz. In August
On the subject of market based price determination, the 2007, TRAI recommended a price for licensees who seek
MoF in paras 19 & 20 stated as follows: spectrum beyond 10 MHz. DoT wants to apply this price
for spectrum between 4.4 MHz and 6.2 MHz for spectrum
“Market Based Price Determination beyond 6.2 MHz, DoT is agreeable to using the price
determined as at paragraph 22 above.
19. If auction is ruled out, what are the alternatives for F F
determining an appropriate market based price for 30. Ministry of Finance differs from the above position of
spectrum? DoT. There is no contractual obligation to allot a start-up
spectrum of 4.4 MHz to every licensee free of cost. The
20. The value of spectrum embedded in the entry fee entire range of the spectrum allotted should be priced. The
provides a possible reference frame for pricing spectrum. G G issue of level playing field can be addressed by charging
Currently, 4.4MHz of spectrum is allotted at the entry level this price even on existing operators.
on payment of an entry fee of Rs. 1650 crores for pan-India
operation. This translates to an embedded price of Rs.375 31. Moreover, the differentiated pricing suggested by DoT,
crores/MHz. This price was discovered in 2001 and fixed viz. One price for spectrum between 4.4 and 6.2 MHz and
in 2003/04. Using this reference frame price, there are two a different price for spectrum beyond 6.2 MHz will be
H H
clumsy, non-transparent and legally questionable. It will be A A “4.0 Union Cabinet, in its meeting on October 31, 2003
neat and transparent to fix a single circle-specific price for had, inter alia, decided that spectrum pricing would need
spectrum across the entire bandwidth. to be decided mutually between DoT and MoF so as to
provide incentive for efficient use of spectrum as well as
On Merger and Acquisition (M&A), the views expressed disincentive for sub-optimal usage. In the context of this
by the Finance Minister read as follows: B decision, the following amendments are being suggested
B
in Pricing of Spectrum, its allotment among Access
“32. It is likely that the market will see considerable M&A
providers and Spectrum Usage Charges:
activity over the next few years. It should be Government’s
endeavour to ensure that this consolidation happens in an 1. Any Allotments of Spectrum to access
efficient and healthy manner. One question that arises is subscriber licensees under UASL regime
whether the Government should get a premium out of an C C may henceforth be specifically priced and
M&A transaction. Since spectrum has not been auctioned charged for. The charge may be determined,
but priced juristically, it is likely that the rent, if any, involved circle wise, by adopting the Entry Fee, fixed
in the price of spectrum will form part of the M&A for that circle in 2003-04, and thereafter
transaction which would typically involve a host of other inflating it by the multiplier, which represents
assets and liabilities, is a complex task. TRAI is best D D the growth in aggregate AGR per MHz
positioned to think through and advise on this issue. The between 2003-04 and 2007-08; hence, for a
ToRs to TRAI in the regard should be: (i) What should be Pan India operator, the Circle fee fixed in
guidelines for M&As between UASL operators? (ii) Should 2003-04 (Rs.375 crore per MHz) would be
Government get a premium out of M&A activity? And (iii) inflated by a multiple of 3.5 (which represents
if yes, how can this premium be determined? E E the growth in AGR/MHz between 2003-04
and 2007-08) to yield the new spectrum price
45. Ministry of Finance (Department of Economic Affairs)
of Rs.1,312 Crore per MHz (approximately);
also prepared a note on 7.4.2008 after discussing the matter
with the Minister of Finance, which shows that the Minister of 2. The price determined as above may be
Finance had also agreed that spectrum usage charges should made applicable to both the new and existing
F F
be increased reflecting the scarcity value of spectrum as operators; moreover, the entire range of
indicated in Ministry’s note dated 11.2.2008. On pricing of spectrum allotted may be charged, for both
spectrum, the Ministry of Finance was of the view that they might new and existing operators; such operators
insist in principle on pricing spectrum (beyond 4.4. MHz) who do not intend to pay the new charges
although details could be worked out after the auction of 3G’s may be given the option of surrendering the
spectrum. G G
Spectrum allotted to them;....................”
46. Mr. Govind Mohan, Director, Ministry of Finance had 47. Letter, it is seen, was issued with the approval of the
prepared a detailed office memorandum on 8.4.2008, wherein Minister of Finance.
after referring to the DoT letter dated 29.1.2008, the following
amendments were suggested: H H 48. Noticing some mistakes in that office memorandum,
an amended office memorandum was issued by Mr. Govind A A (AGR) for different spectrum bands, may henceforth
Mohan, on the same date. The reason is obvious, because the be charged as a percentage of AGR based on
Finance Secretary D. Subbaroa, had made a note on 7.4.2008 volume of business categorization, so as to better
stating that the FM’s view was that the Ministry must insist in reflect and capture the circle specific scarcity value
principle on pricing of Spectrum (beyond 4.4.MHz), although of spectrum. The revised charges proposed for
details could be worked out after the auction of 3G Spectrum. B B various Circles are as per the table annexed to this
Evidentially it was a bona fide mistake committed by Dr. OM and as agreed in the discussions between
Govind Mohan, because the original Memo dated 8.4.2008 was Finance Secretary and Secretary, Department of
contrary to the note prepared by the Finance Secretary, and Telecom;
hence he had to issue a corrected OM the operative portion of
the same reads as follows: 4. The recommendations of TRAI for revising the
C C subscriber base criteria for allotment of spectrum
‘4. Union Cabinet in its meeting on October 31, 2003, inter may be considered for implementation in the
alia, decided that spectrum pricing would need to be interest of enhancing efficiency of spectrum usage
decided mutually between DoT and MoF so as to provide and encouraging technological innovations.
incentive for efficient use of spectrum as well as
disincentive for sub-optimal usage. In the context of this D D 49. Shri P. Chidambaram, wrote a letter dated 21.4.2008
decision, the issues that need to be decided in respect of to Shri A. Raja, forwarding a non-paper containing Finance
2G spectrum were discussed by Finance Secretary in Minister’s views on issues relating to 2G Spectrum and issues
three rounds of meetings with Secretary (Telecom) in relating to 3G (Wi Max Spectrum). After discussions, it was
February, 2008. Accordingly, the following amendments pointed out that the conclusion be presented to the Prime
are being suggested in Pricing of Spectrum, its allotment E E Minister.
among Access providers and Spectrum Usage Charges:
50. The Finance Secretary, as instructed by the Finance
1. Any allotments of spectrum to access subscriber Minister, met the Secretary DoT on 24th April, 2008 and a hand
licensees under UASL regime – beyond the initial written note was prepared by the Finance Secretary on
“start-up” allocation of 4.4 MHz – may henceforth be 29.4.2008 on all outstanding issues. The recommendations of
F F the MoF were as follows:
specifically priced and charged for. Details in this
regard can be worked out;
“Pricing of Spectrum
2. The price determined as above may be made
3. We may recommend the following principles for
applicable to both the new and existing operators;
pricing of spectrum:
such operators who do not intend to pay the new G G
charges may be given the option of surrendering (i) The start-up spectrum of 4.4 MHz for GSM (2.5 MHz
the spectrum allotted to them; for CDMA may be exempted from upfront pricing
both for new and existing operators.
3. Spectrum Usage Charge, instead of being charged
as a fixed percentage of Adjusted Gross Revenue H H
(ii) Under the UASL Licensing regime, there appears A A “Issues relating to Mergers and Acquisitions
to be an implicit, indirect contractual obligation to
allow further allotment of spectrum, beyond 4.4 MHz 16. DoT have issued a notification on April 22, 2007 on
for GSM (2.5 MHz for CDMA), and upto 6.2 MHz “Guidelines for intra service merger of Cellular Mobile
for GSM (5MHz for CDMA) after payment of 1% Telephone Service (CMTS)/Unified Access Services
additional spectrum usage charges and ensuring (UAS) Licensees”.
B B
that already allocated spectrum has been optimally
17. The guidelines derive substantially from the
and efficiently utilized. This may effectively protect
recommendations made by TRAI on this subject vide
operators who have existing allocations upto 6.2
Report of August, 2007. The guidelines mandate a
MHz for GSM (5MHz for CDMA) from payment of
“spectrum transfer charges” to be payable as specified by
any other charges, including the “up front” spectrum C C Government.
price. Since it may not be possible to charge
operators already having allocations upto this 18. DoT may be advised that fixation of “spectrum transfer
range, the principle of equity and “level playing field” charges” shall be in consultation with DEA.”
would require that the operators, who get fresh
allotment of spectrum upto 6.2 MHz for GSM (5MHz 51. Shri P. Chidambaram and Shri A. Raja met on
D D 29.5.2008 and 12.6.2008 for resolving the then outstanding
for CDMA) too should not be charged for spectrum
upto 6.2 MHz for GSM ( 5 MHz for CDMA). issues relating to the allocation and pricing 2G and 3G
Spectrums. Meeting of two Ministers would not by itself be
(iii) Spectrum beyond 6.2 MHz in case of GSM (5MHz sufficient to infer the existence of a conspiracy. Even before
in case of CDMA) should be priced. This is those meetings, as instructed by the Finance Minister, the
defensible on the following grounds. First, as per the E E Finance Secretary and Telecom Secretary had already met on
terms of the UAS license, there is no contractual 24.4.2008, had agreed that it might not be possible to charge
obligation on the part of the Government to operators already having allocation upto 6.2 MHz and the
necessarily allot spectrum beyond 6.2 MHz (beyond principle of equity and level playing field would require that the
5MHz in case of CDMA); and, secondly, operators who get fresh allotment of Spectrum upto 6.2MHz for
Government retains the sovereign right to modify the F F GSM too should not be charged for Spectrum upto 6.2 MHz
terms of license as also the procedure for allocation for GSM. Therefore, the allegation that Shri P. Chidambaram
of spectrum, including quantum of spectrum, at any had over-ruled his officers’ views and had conspired with Shri
point of the time without assigning any reason.” A. Raja is without any basis.
(emphasis supplied) 52. Criminal conspiracy cannot be inferred on the mere fact
G G
that there were official discussions between the officers of the
Issues relating to merger and acquisition have been dealt
MoF and that of DoT and between two Ministers, which are all
with in Paras 16 to 18 and the same read as follows:
recorded. Suspicion, however, strong, cannot take the place of
legal proof and the meeting between Shri P. Chidambaram and
Shri A. Raja would not by itself be sufficient to infer the
H H
SUBRAMANIAN SWAMY v. A. RAJA 915 [2012] 11 S.C.R. 916
existence of a criminal conspiracy so as to indict Shri P. A A THE STATE OF MAHARASHTRA & ORS. ETC.ETC.
Chidambaram. Petitioners submit that had the Minister of v.
Finance and the Prime Minister intervened, this situation could SAEED SOHAIL SHEIKH ETC. ETC.
have been avoided, might be or might not be. A wrong (Criminal Appeal Nos.1735-1739 of 2012)
judgment or an inaccurate or incorrect approach or poor
NOVEMBER 2, 2012
management by itself, even after due deliberations between B B
Ministers or even with Prime Minister, by itself cannot be said [T.S. THAKUR AND FAKKIR MOHAMED
to be a product of criminal conspiracy. IBRAHIM KALIFULLA, JJ.]
53. We are of the considered view that materials on record
do not show that Shri P. Chidambaram had abused his position Prisoners Act, 1900 – s.29 – Transfer of prisoners –
as a Minister of Finance or conspired or colluded with A. Raja C C When envisaged – Held: Transfer in terms of sub-section (1)
so as to fix low entry fee by non-visiting spectrum charges fixed of s.29 is permissible only in distinct situations covered by
in the year 2001. No materials are also made available even clauses (a) to (d) – The provision does not deal with undertrial
for a prima facie conclusion that Shri P. Chidambaram had prisoners who do not answer the description given therein –
deliberately allowed dilution of equity of the two companies, i.e. Transfer under sub-section (2) of s.29 is also permissible only
Swan and Unitech. No materials is also available even prima D D if it relates to prisoners confined in circumstances indicated
facie to conclude that Shri P. Chidambaram had abused his in sub-section (1) of s.29.
official position, or used any corrupt or illegal means for Code of Criminal Procedure, 1973 – ss.167 and 309 –
obtaining any pecuniary advantage for himself or any other Transfer of prisoner with permission of the court under whose
persons, including Shri A. Raja. warrant the undertrial had been remanded to custody – Power
E E exercisable by the court while permitting or refusing transfer
54. We are, therefore, of the considered opinion that no
case is made out to interfere with the order dated 4.2.2012 in – Nature of the power – Held: Is ‘judicial’ and not ‘ministerial’
C.C. No. 01 (A) / 11 passed by Special Judge CBI (04) (2G – It is obligatory for the Court to apply its mind fairly and
Spectrum Cases), New Delhi or to grant reliefs prayed for in objectively to the circumstances in which the transfer is being
I.A. No. 34 of 2012. Special Leave Petition (Crl.) No. 1688 of F prayed for and take a considered view having regard to the
F objections which the prisoner may have to offer – There is in
2012 is, therefore, not entertained, so also I.A. No. 34 of 2012
in Civil Appeal No.10660 of 2010 and they are accordingly that process of determination and decision-making an implicit
stand rejected. duty to act fairly, objectively or in other words to act judicially
– Thus any order of transfer passed in any such proceedings
K.K.T. SLP & I.A. Rejected. can be nothing but a judicial order or at least a quasi-judicial
G one – In the instant case, inasmuch as the trial court appears
to have treated the matter to be administrative and
accordingly permitted the transfer without issuing notice to the
under-trials or passing an appropriate order in the matter, it
H 916
STATE OF MAHARASHTRA & ORS. ETC.ETC. v. SAEED 917 918 SUPREME COURT REPORTS [2012] 11 S.C.R.
SOHAIL SHEIKH ETC. ETC.
committed a mistake – Communication received from the A A Maharashtra and senior officers in the Department of
prison authorities was dealt with and disposed of at an Prisons, Government of Maharashtra against a common
administrative level by sending a communication in reply judgment passed by the High Court whereby a batch of
without due and proper consideration and without passing a criminal writ petitions filed by the respondents were
considered judicial order which alone could justify a transfer allowed, transfer of the respondents-prisoners from
in the case – Such being the position the High Court was right B B Arthur Road Jail in Bombay to three other jails in the
in declaring the transfer of respondent- undertrials to be void State of Maharashtra held to be illegal and the appellants
and directing their re-transfer back to Bombay jail. directed to transfer the prisoners back to the jail at
Bombay.
Custodial torture – Report submitted by Sessions Judge
– Consequent direction issued by High Court to the Earlier, in the writ petitions filed by the respondents
C C before the High Court, allegations regarding use of
Government to hold inquiry against those responsible for
using excessive force against the undertrial prisoners and for excessive force and inhuman treatment were made
dereliction of duty by jail doctors – Challenge to – Held: Said against the jail officials including the Superintendent of
direction of the High Court was issued entirely on the basis the Central Jail. The respondents alleged that the use of
of the report submitted by the Sessions Judge – However, that force was without any provocation and justification apart
report besides being preliminary was flawed in many respects D D from being inspired by reasons extraneous to the need
including the fact that the same did not comply with the basic for maintaining peace and order within the jail. The nature
requirement of a fair opportunity of hearing being given to of the allegations made in the writ petitions was found by
those likely to be affected – It was at any rate not for the High the High Court to be sufficient to call for an inquiry into
Court to record a final and authoritative finding that the force the violent incident. This inquiry was assigned to a
used by the jail authorities was excessive or that it was used E E Sessions Judge who came to the conclusion on the basis
for any extraneous purpose – It was a matter that could be of the medical records of the injured that the use of force
determined only after a proper inquiry was conducted and an by the jail authorities was excessive and further that the
opportunity afforded to those who were accused of using such injured were not given medical aid and they were not
excessive force or abusing the power vested in them – properly examined by the doctors from the Bombay
Consequential directions issued by the High Court in directing F F Central Police.
the State Government to initiate disciplinary inquiry against
all the officers involved in the incident were, therefore, On a consideration of the report received from the
premature – Government directed to treat the report submitted Sessions Judge, the High Court found it necessary to
by the Sessions Judge as a preliminary inquiry and take a direct the Government to hold a departmental inquiry
considered decision whether or not any further inquiry, G against the officials who had used excessive force in
G
investigation or proceedings needs to be conducted against bringing the situation in the jail under control. The High
those allegedly responsible for using excessive force against Court found that the order transferring the respondents-
the under-trials. undertrial prisoners from Bombay Central Jail to other
jails in the State was illegal and unacceptable inasmuch
The instant appeals were filed by the State of as the request for transfer had been dealt with at an
H H
administrative level without affording an opportunity to A A of doubt that a transfer under sub-section (2) is also
the undertrials to oppose the same. The High Court permissible only if it relates to prisoners who were
rejected the contention urged on behalf of the appellants confined in circumstances indicated in sub-section (1) of
that Section 29 of the Prisoners Act, 1900 empowers the Section 29. The respondents in the present case were
State Government or the Inspector General of Prisons to undertrials who could not have been transferred in terms
transfer the undertrials. The power to transfer the B B of the orders of the Inspector General of Prisons under
undertrials was, according to the High Court, exercisable Section 29. [Para 21] [935-D-F]
only by the Court under whose orders the prisoners were
remanded to judicial custody in a given jail and that Whether undertrials can be transferred to any prison with
inasmuch as the court concerned had faltered in taking the permission of the court under whose orders he has
appropriate action on the request for transfer by treating C been committed to the prison
C
the request to be only an administrative matter, the 2.1. Section 167(2) CrPC empowers the Magistrate to
sanction for transfer of the undertrials to other jails was whom an accused is forwarded whether or not he has
vitiated. jurisdiction to try the case to authorize his detention in
Partly allowing the appeals, the Court such custody as the Magistrate deems fit for a term not
D D exceeding 15 days in the whole. Section 309 CrPC, inter
HELD:1.1. Removal of any prisoner under Section 29 alia, empowers the court after taking cognizance of an
of the Prisoners Act, 1900 is envisaged only at the offence or commencement of the trial to remand the
instance of the State Government in cases where the accused in custody in cases where the court finds it
prisoner is under a sentence of death or under or in lieu necessary to postpone the commencement of trial or
of a sentence of imprisonment or transportation or is E E inquiry.The rationale underlying both these provisions is
undergoing in default of payment of fine or imprisonment that the continued detention of the prisoner in jail during
in default of security for keeping the peace or for the trial or inquiry is legal and valid only under the
maintaining good behaviour. Transfer in terms of sub- authority of the Court/Magistrate before whom the
section (1) of Section 29 is thus permissible only in accused is produced or before whom he is being tried.
distinct situations covered by clauses (a) to (d). The F F An undertrial remains in custody by reasons of such
provision does not, it is manifest, deal with undertrial order of remand passed by the concerned court and
prisoners who do not answer the description given such remand is by a warrant addressed to the authority
therein. [Para 20] [935-A-C] who is to hold him in custody. The remand orders are
invariably addressed to the Superintendents of jails
1.2. Though sub-section (2) of section 29 no doubt where the undertrials are detained till their production
empowers the Inspector General of Prisons to direct a G G
before the court on the date fixed for that purpose. The
transfer but what is important is that any such transfer prison where the undertrial is detained is thus a prison
is of a prisoner who is confined in circumstances identified by the competent court either in terms of
mentioned in sub-section (1) of Section 29. That is evident Section 167 or Section 309 CrPC. It is axiomatic that
from the use of words “any prisoner confined as transfer of the prisoner from any such place of detention
aforesaid in a prison”. The expression leaves no manner H H
would be permissible only with the permission of the A A case. Such being the position the High Court was right
court under whose warrant the undertrial has been in declaring the transfer to be void and directing the re-
remanded to custody. [Paras 24, 25] [936-G-H; 937-A; transfer of the undertrials to Bombay jail. [Para 39] [947-
938-C-G] C-G]
2.2. The power exercisable by the court while B Sunil Batra v. Delhi Administration AIR 1980 SC 1579:
B
permitting or refusing transfer is ‘judicial’ and not 1980 (2) SCR 557 – relied on.
‘ministerial’. Exercise of ministerial power is out of place
in situations where quality of life or the liberty of a citizen Province of Bombay v. Khusaldas Advani AIR 1950 SC
is affected, no matter he/she is under a sentence of 222: 1950 SCR 621; ; State of Orissa v. Dr. Binapani Dei
imprisonment or is facing a criminal charge in an on- AIR 1967 SC 1269: 1967 SCR 625; A.K. Kraipak v. Union
C C of India (1969) 2 SCC 262: 1970 (1) SCR 457; Mohinder
going trial. Transfer of an undertrial to a distant prison
may adversely affect his right to defend himself but also Singh Gill. v. Chief Election Commission (1978) 1 SCC 405:
isolate him from the society of his friends and relations. 1978 (2) SCR 272; Jamal Uddin Ahmad v. Abu Saleh
[Para 27] [939-B-D] Najmuddin (2003) 4 SCC 257: 2003 (2) SCR 473 – referred
to.
2.3. Any order that the Court may make on a request D D
for transfer of a prisoner is bound to affect him The King v. The Electricity Commissioner [1924] 1 K.B.
prejudicially. It is thus obligatory for the Court to apply 171 and The King v. London County Council [1931] 2 K.B.
its mind fairly and objectively to the circumstances in 215 – referred to.
which the transfer is being prayed for and take a
Judicial Review (Thomson Sweet & Maxwell, 6th Edition,
considered view having regard to the objections which E E 2007) by Prof. De Smith and Black’s Law Dictionary –
the prisoner may have to offer. There is in that process
referred to.
of determination and decision-making an implicit duty to
act fairly, objectively or in other words to act judicially. It Whether the High Court was justified in directing the
follows that any order of transfer passed in any such Government to hold an inquiry against those responsible
proceedings can be nothing but a judicial order or at least F F for using excessive force (against the undertrial
a quasi-judicial one. In the instant case, inasmuch as the prisoners) and for dereliction of duty by the medical
trial court appears to have treated the matter to be officer (jail doctors)
administrative and accordingly permitted the transfer
without issuing notice to the under-trials or passing an 3.1. The said direction of the High Court was issued
appropriate order in the matter, it committed a mistake. entirely on the basis of the report submitted by the
G G
A communication received from the prison authorities Sessions Judge. That report besides being preliminary
was dealt with and disposed of at an administrative level is flawed in many respects including the fact that the
by sending a communication in reply without due and same does not comply with the basic requirement of a
proper consideration and without passing a considered fair opportunity of hearing being given to those likely to
judicial order which alone could justify a transfer in the be affected. It is true that the statements of some of the
H H jail officials have also been recorded in the course of the
inquiry but that is not enough. Those indicted in the A A preliminary report could not serve any other purpose.
report were entitled to an opportunity to cross-examine [Para 41] [948-G-H; 949-A-D]
those who alleged misconduct against them. Not only
that the Sessions Judge has not named the officers 3.3. In a country governed by the rule of law police
responsible for the alleged use of excessive force which excesses whether inside or outside the jail cannot be
was essential for any follow up or further action in the B countenanced in the name of maintaining discipline or
B
matter. So, also the report clearly states the officials dealing with anti-national elements. Accountability is one
concerned have not been allowed to examine any of the facets of the rule of law. If anyone is found to have
witness although a request was made by them to do so. acted in breach of law or abused his position while
Such being the position, some of the observations made exercising powers that must be exercised only within the
by the High Court that give an impression as though the C parameters of law, the breach and the abuse can be
C punished. That is especially so when the abuse is alleged
misdemeanour of the jail officers had been proved, do
not appear to be justified. [Para 40, 41] [948-B-E-G-H] to have been committed under the cover of authority
exercised by people in uniform. Any such action is also
3.2. It was at any rate not for the High Court to record open to critical scrutiny and examination by the Courts.
a final and authoritative finding that the force used by the Having said that one cannot ignore the fact that the
jail authorities was excessive or that it was used for any D D country today faces challenges and threats from extremist
extraneous purpose. It was a matter that could be elements operating from within and outside India. Those
determined only after a proper inquiry was conducted dealing with such elements have at times to pay a heavy
and an opportunity afforded to those who were accused price by sacrificing their lives in the discharge of their
of using such excessive force or abusing the power duties. The glory of the constitutional democracy that this
vested in them. Consequential directions issued by the E E country has adopted, however, is that whatever be the
High Court in directing the State Government to initiate challenges posed by such dark forces, the country’s
disciplinary inquiry against all the officers involved in the commitment to the Rule of Law remains steadfast. Courts
incident were, therefore, premature. This is because the in this country have protected and would continue to
question whether any disciplinary inquiry needs to be protect the ideals of the rights of the citizen being
instituted against the jail officials would depend upon the F F inviolable except in accordance with the procedure
outcome of a proper investigation into the incident and established by law. [Para 42] [949-E-H; 950-A-B]
not a preliminary enquiry in which the Investigating
Officer, apart from statements of the respondents, makes 3.4. The Government shall treat the report submitted
use of information discreetly collected from the jail by the Sessions Judge as a preliminary inquiry and take
inmates. The report of the Sessions Judge could in the G a considered decision whether or not any further inquiry,
G
circumstances provide no more than a prima facie basis investigation or proceedings against those allegedly
for the Government to consider whether any further responsible for using excessive force while restoring
investigation into the incident was required to be discipline in the Central Jail at Bombay on 26th June, 2008
conducted either for disciplinary action or for launching needs to be conducted. [Para 43] [950-C-D]
prosecution of those found guilty. Beyond that the H H
Case Law Reference A A High Court of Judicature at Bombay whereby a batch of criminal
writ petitions filed by the respondents have been allowed,
1980 (2) SCR 557 relied on Para 27 transfer of the respondents-prisoners from Arthur Road Jail in
1950 SCR 621 referred to Paras 30, 31, Bombay to three other jails in the State of Maharashtra held to
33 be illegal and the appellants directed to transfer the prisoners
B B back to the jail at Bombay. The High Court has expressed the
1924 1 K.B. 171 referred to Para 31 view that jail authorities having used force against undertrial
1931 2 K.B. 215 referred to Para 32 prisoners for no fault of theirs and since such force was used
for extraneous reasons and was excessive, the Chief Secretary
1967 SCR 625 referred to Para 35 of the State of Maharashtra shall initiate a disciplinary inquiry
C C against all those involved in the incident. The High Court has
1970 (1) SCR 457 referred to Para 36
further held that if need be in addition to departmental inquiry,
1978 (2) SCR 272 referred to Para 37 criminal action be also taken against the concerned officers
including an inquiry into the conduct of the jail doctors for
2003 (2) SCR 473 referred to Para 38 dereliction of their duty and alleged fudging of the records.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal D D 3. The factual matrix relating to the transfer of the prisoners
Nos. 1735-1739 of 2012.
from Bombay Central Prison to other prisons in the State and
From the Judgment & Order dated 21.7.2009 of the High use of force causing injuries to some of them has been set out
Court of Judicature at Bombay in Criminal Writ Petition No. in the order passed by the High Court at some length. We need
1377 of 2008, Criminal Application No. 50 of 2009 in Criminal not, therefore, recount the same over again except to the extent
Writ Petition No. 1377 of 2008, Criminal Writ Petition No. 1496 E E it is necessary to do so for the disposal of these appeals.
of 2008, Criminal Writ Petition No. 1773 of 2008 and Criminal
4. Superintendent of the Bombay Central Prison appears
Writ Petition No. 2746 of 2008.
to have addressed a letter to the Special Judge under The
Shekhar Naphade, Amrender Saran, Arun R Pednekar, Maharashtra Control of Organised Crime Act, 1999 (hereinafter
Sanjay Kharde, Asha Gopalan Nair, Abhay Kumar, Upendra F F referred to as the MCOC Act) requesting for permission to
Pratap Singh, Rutwik Panda, Nilofar Qureshi for the Appearing transfer accused persons in three different Bombay blast cases
Parties. being MCOC cases No.16/2006, 21/2006 and 23/2006. The
request for transfer was proceeded on two distinct grounds
The Judgment of the Court was delivered by namely (i) that against a capacity of 840 prisoners, the Bombay
jail had as many as 2500 prisoners housed in it resulting in
T.S. THAKUR, J. 1. Leave granted. G G
over-crowding and consequent problems of management in the
2. These appeals have been filed by the State of jail and (ii) that proceedings in the on-going cases in question
Maharashtra and senior officers in the Department of Prisons, had been stayed with the result that the presence of the
Government of Maharashtra against a common judgment and accused persons involved in the said cases was no longer
order dated 21st July, 2009 passed by a Division Bench of the required in the near future.
H H
SOHAIL SHEIKH ETC. ETC. [T.S. THAKUR, J.]
5. In response to the request aforementioned the Special A A undertrial prisoners started shouting anti-national and
Judge passed an order dated 26th March, 2004, inter alia, provocative slogans. After hearing these slogans from the high
stating that: security cell, 21 undertrial prisoners who had gathered near the
Lal Gate also started giving similar slogans and charged
“xxxxxxxx towards the jail officials, Wardens and watchmen and started
It is true that Honourable Supreme Court has granted B B assaulting them with bricks and stones. The version of the
appellants is that these 21 undertrial prisoners also tried to
stay to entire further proceedings of above referred cases
approach the High Security Cell and tried to open its gate while
and therefore, presence of accused is no more required
in near future. It is total domain of Jail Authorities to they continued shouting slogans. Apprehending that the
situation may go out of hand, the alarm bell was sounded in
transfer accused to other jails due to scarcity of premises
the jail and force reasonable enough to bring the situation under
or for security purpose. As the presence of accused is not C C
required immediately, you are at liberty to take action of control used for that purpose. The appellants contend that
because of the assault by the undertrial prisoners, the jail
transfer of above referred accused to other jails as per
guards and prison officers sustained injuries.
rules and regulations.”
8. A report regarding the incident in question was
6. Administrative approval for the transfer of 37 undertrial D D
prisoners involved in the above three cases was also obtained submitted on 30th June, 2008 to the Deputy Inspector General
of Prison with a copy to the Principal Judge, City Sessions
from the Inspector General of Prisons who directed the
Court, Greater Bombay, Registrar Special-Judge, under
Superintendent, Bombay Central Prison, to keep in mind the
criminal background of the prisoners while allocating them to MCOC Act apart from other officers in the prison hierarchy.
Such of the prisoners as had received injuries were forwarded
different jails in the State.
E E to the jail medical officers who examined them and issued
7. On 22nd June, 2008 the jail authorities appear to have medical certificates, regarding injuries sustained by them. The
sent a requisition for an escort to the police headquarters which appellants allege that there was no violation of any statutory
police escort was provided and reached the jail premises on provision of law nor any other act of impropriety or illegality
28th June, 2008 at 9.00 a.m. An announcement was then made committed by them.
requesting thirty-two undertrial prisoners to gather near Lal F F
Gate in the prison premises out of whom seven prisoners were 9. In the writ petitions filed by the respondents before the
High Court, allegations regarding use of excessive force and
transferred to Ratnagiri Special Jail around 11.40 a.m. The
inhuman treatment were made against the jail officials including
other nineteen undertrials were said to be sitting outside while
two other undertrial prisoners named Kamal Ahmad Vakil the Superintendent of the Central Jail. The respondents alleged
that the use of force was without any provocation and
Ansari and Dr. Tanveer Mohd. Ibrahim Ansari refused to leave G G
justification apart from being inspired by reasons extraneous
their cell to join the escort party despite persuasions by the jail
authorities. The case of the appellants is that these undertrial to the need for maintaining peace and order within the jail. The
nature of the allegations made in the writ petitions was found
prisoners refused to listen to the jail authorities and started
by the High Court to be sufficient to call for an inquiry into the
abusing and misbehaving with the jail officials including Mrs.
Swati Madhav Sathe, the Jail Superintendent. Not only that, the H violent incident. This inquiry was assigned to the Sessions
H
Judge, Greater Bombay who was asked to report whether use A A ignored, and the facts which can be called as common
of force by the jail authorities on 28th June, 2008 was excessive from the statements given by the jail staff and the prisoners
and whether, force was used for any extraneous reasons other are considered, it can be said that shouts of Tanvir who
than for maintaining discipline in terms of the Discipline Rules, was assaulted inside of High Security Zone were heard
1963 of the Jail Manual. The Sessions Judge was also asked by the prisoners who had gathered outside, in the open
to enquire into the circumstances in which the prisoners had B B space. Material is also sufficient to infer that Kamal came
access to bricks and stones as claimed by jail authorities in out though without stick and he instigated the 20 prisoners
the counter-affidavit filed before the High Court. who were sitting outside in the open space.”
10. An inquiry pursuant to the directions of the High Court 11. The Inquiry Officer further found that the resistance
was accordingly conducted by the learned Sessions Judge, offered by Kamal Ahmad Vakil Ansari and Dr. Tanveer Mohd.
C C Ibrahim Ansari required use of force against them but since
Greater Bombay in which the Sessions Judge recorded the
statements of the injured as also the jail officials besides some both of them started shouting slogans other prisoners who were
other inmates of the jail. The report submitted by the Sessions gathered outside in the open portion of the jail gate got agitated
Judge concluded that the cause underlying the incident of 28th and rushed towards the High Security Cell to see as to what
June, 2008 was the resistance offered by Kamal Ahmad Vakil was happening. The Inquiry Officer held that hearing the anti-
Ansari and Dr. Tanveer Mohd. Ibrahim Ansari to their transfer D D national slogans, the jail officers lost their calm and ordered use
from the prison. The Inquiry Officer observed: of force leading to breach of disturbances within the jail. The
Inquiry Officer has specifically noted that the disturbances had
“….The inquiry revealed that Tanvir and Kamal had resisted started on account of instigation given by Kamal Ansari and
the jail staff on that day and they were not ready to go out slogans shouted by him and that there were reasons for the jail
of the High Security Zone. Inquiry further revealed that the E E authorities to bring the situation under control. The following
jail staff was required to use force against them for taking passage in the inquiry report is, in this regard, relevant:
them out of the room, then from barrack and then from the
circle itself…. “xxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx There is possibility that after hearing the shouting of Tanvir

F F and after hearing from Kamal that Tanvir was being beaten
Statements of prisoners sent to Kolhapur and Nagpur in High Security Zone and after hearing slogans given by
jails and the statement of the jail staff if considered Tanvir, prisoners who had gathered outside became
together, are sufficient to infer that Tanvir and Kamal disturbed. It can be said that they must have rushed
offered maximum resistance to jail staff and they had towards the High Security Zone to see as to what was
refused to come out of High Security Zone but they were G G happening. There is a clear possibility that after hearing
not taken out of their respective rooms and so there is no of the slogans which were given against India, officers
convincing statement given by anybody in respect of other outside became angry and then order was made to use
two prisoners. It can be said that they were removed after force. Aforesaid circumstances have created probability
the main incident was over. If the exaggeration made by that there was breach of discipline in view of the Rules
other prisoners who were brought from Kolhapur jail is H H framed under the Maharashtra Prison (Discipline) Rules
of 1963 and there was disturbance to some extent. I have A A Government to hold a departmental inquiry against the officials
no hesitation to come to the conclusion that due to the who had used excessive force in bringing the situation in the
instigation given by Kamal and slogans given by him, jail under control. The High Court found that the order
disturbance was caused and there was reason for the jail transferring the respondents-undertrial prisoners from Bombay
authority to order use of force. Force was used to bring Central Jail to other jails in the State was illegal and
the situation under control. But it needs to be ascertained B B unacceptable inasmuch as the request for transfer had been
as to whether there was excessive use of force or there dealt with at an administrative level without affording an
was some extraneous reason also for excess use of force opportunity to the undertrials to oppose the same. The High
against these prisoners.” Court rejected the contention urged on behalf of the appellants
that Section 29 of the Prisoners Act, 1900 empowers the State
12. Having identified the cause of disturbances the Inquiry
Officer next examined the question whether the force used by C C Government or the Inspector General of Prisons to transfer the
undertrials. The power to transfer the undertrials was, according
the jail authorities was excessive and came to the conclusion to the High Court, exercisable only by the Court under whose
on the basis of the medical records of the injured namely, orders the prisoners were remanded to judicial custody in a
Tanveer, Kamal, Ehatesham, Sayed Asif, Abdul Wahid, Mohd. given jail. Inasmuch as the court concerned had faltered in
Zuber, Mushtaq Ahmed, Mohd. Zahid, Zameer Ahmad, Riyaz taking appropriate action on the request for transfer by treating
Ahmed and Mohd. Mujaffar that the use of force by the jail D D
the request to be only an administrative matter, the sanction for
authorities was excessive. The Inquiry Officer further held that transfer of the undertrials to other jails was vitiated.
the injured were not given medical aid. They were not properly
examined by the doctors from the Bombay Central Police. 14. Appearing for the appellants Mr. Shekhar Naphade,
Speaking about the conduct of the doctors in Bombay Central learned senior counsel, made a three-fold submission before
Prison the Inquiry Officer observed: E E us. Firstly, it was contended that the undertrial prisoners had
no enforceable right to demand that they should be detained
“This conduct of the doctors of Mumbai Central Prison in a prison of their choice or to resist their transfer from one
speaks volume about the general approach of the jail jail to the other if the court under whose orders they were
authority and the doctors working in the jail. It can be said remanded to such custody permitted such transfer. He argued
that the doctors helped the jail authority in falsifying F F that although Section 29(2) of the Prisoners Act, 1900 permitted
everything and screening illegal actions of the officers. It the Inspector General of Prisons to remove any prisoner from
is surprising for the jail authority also that when under one prison to another in the State even if that power was not
Chapter 11 of the Prison Act, action could have been available qua undertrial prisoners, there was no impediment in
taken against the prisoners if they had committed prison such removal after the court under whose orders the prisoners
offence by assaulting officers, no record in that regard was
G G were committed to jail had permitted such a transfer.
created and no such action was proposed. Instead of that,
jail authority hurriedly transferred the prisoners to other 15. Secondly, it was argued by Mr. Naphade, that the
jails.” power exercisable by the court in the matter of permitting or
refusing the transfer of a prisoner was ministerial in character
13. On a consideration of the report received from the and that the prisoner had no right to demand a notice of any
Sessions Judge, the High Court found it necessary to direct the H H
such request nor an opportunity to oppose the same. It is a A A 18. On behalf of the respondents Mr. Amrender Saran,
matter entirely between the jail authorities on the one hand and learned senior counsel, argued that the transfer of a prisoner
the court concerned on the other in which the prisoner had no especially an undertrial from one prison to the other was not
locus standi to intervene. inconsequential for the prisoner and could not, therefore, be
dealt with at a ministerial level. A prisoner was entitled to
16. Thirdly, it was argued by Mr. Naphade that the High B B oppose the transfer especially if the same adversely affected
Court had fallen in a palpable error in holding that the use of his defence. It was also contended that Section 29 did not
force by the jail authorities was excessive, which called for any empower the Government or the Inspector General of Prisons
administrative or disciplinary action against those responsible to direct transfer of undertrials. It was argued that while the
for using such excessive force. He contended that what would inquiry conducted by the Sessions Judge was not a substitute
constitute reasonable force to restore discipline and peace
within the jail depends largely upon the nature of the incident,
C C for a regular inquiry that may be conducted by the State, yet
the exercise undertaken by a senior officer like the Sessions
the extent of disturbances and the gravity of the consequences Judge under the orders of the High Court could furnish a prima
that would flow if force was not used to restore order. It was facie basis for the High Court to direct an appropriate
not, according to Mr. Naphade possible to sit in judgment over investigation into the case, and to initiate proceedings against
the decision of the jail authorities who were charged with those who may be found guilty of any misconduct on the basis
maintenance of discipline and peace within the jail and D D
of any such investigation.
determine whether force was rightly used and, if so, whether
or not the use of force was excessive. 19. Section 29 of the Prisoners Act, 1900 reads as under:
17. Mr. Naphade also urged that the underlying cause of “29. Removal of prisoners-(1) The [State Government]
the incident in the instant case was resistance put up by the E E may, by general or special order, provide for the removal
undertrials involved in heinous offences against the society of any prisoner confined in a prison-
threatening the very sovereignty and integrity of the country. It
was not open to the concerned prisoners, argued Mr. Naphade (a) under sentence of death, or
to resist their transfer from one jail to the other and to create a
(b) under, or in lieu of, a sentence of imprisonment or
situation in which the jail authorities found it difficult to effectuate F F transportation, or
their transfer. It was also contended by Mr. Naphade that the
reports submitted by the Sessions Judge was at best a (c) in default of payment of a fine, or
preliminary fact finding report which has neither afforded an
opportunity to all concerned to defend themselves against the (d) in default of giving security for keeping the peace or
insinuations or to examine witnesses in their defence. No such for maintaining good behaviour,
G G
report could, therefore, be made a basis by the High Court to
to any other prison in [the State]
issue a mandamus to the State to institute disciplinary action
against the officials concerned as though the finding that the (2) [Subject to the orders, and under the control of the
use of force was excessive was unimpeachable and could State Government, the Inspector-General of prisons may,
constitute a basis for any such direction. in like manner, provide for the removal of any prisoner
H H
confined as aforesaid in a prison in the State to any other A A “26. Removal and discharge of prisoners. – (1) All
prison in the State]” prisoners, previously being removed to any other prison,
shall be examined by the Medical Officer.
20. It is evident from a bare glance at the above provision
that removal of any prisoner under the same is envisaged only (2) No prisoner shall be removed from one prison to
at the instance of the State Government in cases where the another unless the Medical Officer certifies that the prisoner
B B
prisoner is under a sentence of death or under or in lieu of a is free from any illness rendering him unfit for removal.
sentence of imprisonment or transportation or is undergoing in
default of payment of fine or imprisonment in default of security (3) No prisoner shall be discharged against his will from
for keeping the peace or for maintaining good behaviour. prison, if labouring under any acute or dangerous
Transfer in terms of sub-section (1) of Section 29 (supra) is thus distemper, nor until, in the opinion of the Medical Officer,
permissible only in distinct situations covered by clauses (a) C C such discharge is safe.”
to (d) above. The provision does not, it is manifest, deal with
23. The above, does not, in our opinion, support the
undertrial prisoners who do not answer the description given
contention that the Inspector General of Prisons could direct
therein.
removal of undertrial from one prison to other. All that Section
21. Reliance upon sub-section (2) of Section 29, in support D D 26 provides is that before being removed to any other prison
of the contention that the transfer of an undertrial is permissible, the prisoner shall be examined by the medical officer and unless
is also of no assistance to the appellants in our opinion. Sub- the medical officer certifies that the prisoner is free from any
section (2) no doubt empowers the Inspector General of Prisons illness rendering him unfit for removal, no such removal shall
to direct a transfer but what is important is that any such transfer take place. Section 26 may, therefore, oblige the prison
is of a prisoner who is confined in circumstances mentioned authorities to have the prisoner, whether a convict or an
E E
in sub-section (1) of Section 29. That is evident from the use undertrial, medically examined and to remove him only if he is
of words “any prisoner confined as aforesaid in a prison”. The found fit but any such requirement without any specific power
expression leaves no manner of doubt that a transfer under sub- vested in any authority to direct removal, cannot by itself, be
section (2) is also permissible only if it relates to prisoners who interpreted to mean that such removal can be ordered under
were confined in circumstances indicated in sub-section (1) of the order either by the Inspector General of Prisons or any other
F F officer for that matter.
Section 29. The respondents in the present case were
undertrials who could not have been transferred in terms of the
24. That leaves us with the question as to whether
orders of the Inspector General of Prisons under Section 29
undertrials can be transferred to any prison with the permission
extracted above.
of the court under whose orders he has been committed to the
22. We may at this stage refer to Prison Act, 1894 to which G G prison. Reference in this connection may be made to Sections
our attention was drawn by learned counsel for the appellants 167 and 309 of the Code of Criminal Procedure, 1973. Section
in an attempt to show that the Government could direct transfer 167(2) empowers the Magistrate to whom an accused is
of the undertrials from one prison to another. Reliance, in forwarded whether or not he has jurisdiction to try the case to
particular, was placed upon the provisions of Section 26 of the authorize his detention in such custody as the Magistrate
Act which reads as under: H H
deems fit for a term not exceeding 15 days in the whole. It A A provisions of Chapter XXXIII for the purposes of that
reads: Chapter;
“167. Procedure when investigation cannot be (b) no Magistrate shall authorise detention in any custody
completed in twenty-four hours under this section unless the accused is produced before
B him;
(1) xxxxxxxxxxxxxx B
(c) no Magistrate of the second class, not specially
(2) The Magistrate to whom an accused person is empowered in this behalf by the High Court, shall authorise
forwarded under this section may, whether he has or has detention in the custody of the police.”
not jurisdiction to try the case, from time to time, authorise
the detention of the accused in such custody as such C C 25. Reference may also be, at this stage made, to Section
Magistrate thinks fit, a term not exceeding fifteen days in 309 of the Code which, inter alia, empowers the court after
the whole; and if he has no jurisdiction to try the case or taking cognizance of an offence or commencement of the trial
commit it for trial, and considers further to remand the accused in custody in cases where the court
finds it necessary to postpone the commencement of trial or
detention unnecessary, he may order the accused to be
forwarded to a Magistrate having such jurisdiction:
D D inquiry. The rationale underlying both these provisions is that
the continued detention of the prisoner in jail during the trial or
inquiry is legal and valid only under the authority of the Court/
Provided that—
Magistrate before whom the accused is produced or before
(a) the Magistrate may authorise the detention of the whom he is being tried. An undertrial remains in custody by
accused person, otherwise than in the custody of the E reasons of such order of remand passed by the concerned
E
police, beyond the period of fifteen days, if he is satisfied court and such remand is by a warrant addressed to the
that adequate grounds exist for doing so, but no Magistrate authority who is to hold him in custody. The remand orders are
shall authorise the detention of the accused person in invariably addressed to the Superintendents of jails where the
custody under this paragraph for a total period undertrials are detained till their production before the court on
exceeding— the date fixed for that purpose. The prison where the undertrial
F F is detained is thus a prison identified by the competent court
(i) ninety days, where the investigation relates to an offence either in terms of Section 167 or Section 309 of the Code. It is
punishable with death, imprisonment for life or axiomatic that transfer of the prisoner from any such place of
imprisonment for a term of not less than ten years; detention would be permissible only with the permission of the
court under whose warrant the undertrial has been remanded
(ii) sixty days, where the investigation relates to any other G G to custody.
offence, and, on the expiry of the said period of ninety days,
or sixty days, as the case may be, the accused person shall 26. Both Mr. Naphade and Mr. Saran had no serious
be released on bail if he is prepared to and does furnish quarrel on the above proposition. It was all the same argued
bail, and every person released on bail under this sub- that if the provisions of the Prisoners Act, 1900 and the Prisons
section shall be deemed to be to so released under the H H Act, 1894 did not empower the Inspector General of Prisons
A A so that the proceedings may not hop from Caesar to

to transfer the undertrial, the only other mode of such transfer
was with the permission of the court and pursuant to whose Caesar. We direct strict compliance with those norms
warrant of remand the undertrial is held in a particular jail. and institutional provisions for that purpose.”
27. The forensic debate at the Bar was all about the nature 28. The expressions ‘ministerial’, ‘ministerial office’,
of the power exercisable by the court while permitting or B ‘ministerial act’, and ‘ministerial duty’ have been defined by
B
refusing transfer. We have, however, no hesitation in holding Black’s Law Dictionary as under:
that the power exercisable by the court while permitting or “Ministerial, Adj. (16c) of our relating to an act that
refusing transfer is ‘judicial’ and not ‘ministerial’ as contended involves obedience to instructions or laws instead of
by Mr. Naphade. Exercise of ministerial power is out of place discretion, judgment, or skill the court clerk’s ministerial
in situations where quality of life or the liberty of a citizen is C C duties include recording judgments on the docket.
affected, no matter he/she is under a sentence of imprisonment
or is facing a criminal charge in an on-going trial. That transfer Ministerial office. An office that does not include
of an undertrial to a distant prison may adversely affect his right authority to exercise judgment, only to carry out orders
to defend himself but also isolate him from the society of his given by a superior office, or to perform duties or acts
friends and relations is settled by the decision of this Court in D D required by rules, statutes, or regulations.
Sunil Batra v. Delhi Administration AIR 1980 SC 1579, where
this Court observed: Ministerial act. An act performed without the
independent exercise of discretion or judgment. If the act
“48. Inflictions may take many protean forms, apart from is mandatory, it is also termed a ministerial duty.
physical assaults. Pushing the prisoner into a solitary cell,
denial of a necessary amenity, and, more dreadful E E Ministerial duty. A duty that requires neither the exercise
sometimes, transfer to a distant prison where visits or of official discretion nor judgment.”
society of friends or relations may be snapped, allotment
29. Prof. De Smith in his book on ‘Judicial Review’
of degrading labour, assigning him to a desperate or
(Thomson Sweet & Maxwell, 6th Edn. 2007) refers to the
tough gang and the like, may be punitive in effect. Every
F meaning given by Courts to the terms ‘judicial’, ‘quasi-judicial’,
such affliction or abridgment is an infraction of liberty or F
‘administrative’, ‘legislative’ and ‘ministerial’ for administrative
life in its wider sense and cannot be sustained unless
law purposes and found them to be inconsistent. According to
Article 21 is satisfied. There must be a corrective legal
the author ‘ministerial’ as a technical legal term has no single
procedure, fair and reasonable and effective. Such
fixed meaning. It may describe any duty the discharge whereof
infraction will be arbitrary, under Article 14 if it is
requires no element of discretion or independent judgment. It
dependent on unguided discretion, unreasonable, under G G may often be used more narrowly to describe the issue of a
Article 19 if it is irremediable and unappealable, and
formal instruction, in consequence of a prior determination
unfair, under Article 21 if it violates natural justice. The
which may or may not be of a judicial character. Execution of
string of guidelines in Batra set out in the first judgment,
any such instructions by an inferior officer sometimes called
which we adopt, provides for a hearing at some stages,
ministerial officer may also be treated as a ministerial function.
a review by a superior, and early judicial consideration H H
It is sometimes loosely used to describe an act that is neither A A purpose of this question a judicial act seems to be an
judicial nor legislative. In that sense the term is used act done by competent authority, upon consideration of
interchangeably with ‘executive’ or ‘administrative’. The tests facts and circumstances, and imposing liability or
which, according to Prof. De Smith delineate ‘judicial functions’, affecting the rights of others.”
could be varied some of which may lead to the conclusion that
certain functions discharged by the Courts are not judicial such B B This definition was approved by Lord Atkinson in Frome
as award of costs, award of sentence to prisoners, removal of United Breweries Co. v. Bath Justices [1926] A.C. 586,
trustees and arbitrators, grant of divorce to petitioners who are 602, as the best definition of a judicial act as
themselves guilty of adultery etc. We need not delve deep into distinguished from an administrative act.”
all these aspects in the present case. We say so because
pronouncements of this Court have over the past decades C C 31. In Khushaldas Advani’s case (supra) the Court was
made a distinction between quasi-judicial function on the one examining whether the act in question was a ministerial/
hand and administrative or ministerial duties on the other which administrative act or a judicial/quasi-judicial one in the context
distinctions give a clear enough indication and insight into what of whether a writ of certiorari could be issued against an order
constitutes ministerial function in contra-distinction to what under Section 3 of the Bombay Land Requisition Ordinance,
1947. The Court cited with approval the observation of L.J.
would amount to judicial or quasi-judicial function. D D
Atkin in The King v. The Electricity Commissioner [1924] 1
30. In Province of Bombay v. Khusaldas Advani (AIR 1950 K.B. 171 that laid down the following test:
SC 222) this Court had an occasion to examine the difference
“Whenever anybody of persons having legal authority to
between a quasi-judicial order and an administrative or
determine questions affecting the rights of subjects, and
ministerial order. Chief Justice Kania, in his opinion, quoted E E having the duty to act judicially, act in excess of their legal
with approval an old Irish case on the issue in the following authority they are subject to the controlling jurisdiction of
passage: the King’s Bench Division exercised in these writs.”
“…..the point for determination is whether the order in 32. The Court quoted with approval the decision in The
question is a quasi-judicial order or an administrative or F F King v. London County Council [1931] 2 K.B. 215 according
ministerial order. In Regina (John M'Evoy) v. Dublin to which a rule of certiorari may issue; wherever a body of
Corporation [1978] 2 L.R. Irish 371, 376, May C.J. in persons
dealing with this point observed as follows: “It is
established that the writ of certiorari does not lie to (1) having legal authority
remove an order merely ministerial, such as a warrant, G G
but it lies to remove and adjudicate upon the validity of (2) to determine questions affecting rights of subjects
acts judicial. In this connection, the term ‘judicial' does and
not necessarily mean acts of a judge or legal tribunal
(3) having the duty to act judicially
sitting for the determination of matters of law, but for the
H H
(4) act in excess of their legal authority-a writ of A A “The real test which distinguishes a quasi-judicial act
certiorari may issue. from an administrative act is the third item in Atkin L.J.’s
definition, namely the duty to act judicially.”
33. Justice Fazl Ali, in his concurring opinion in
Khushaldas’ case (supra) made the following observations as 35. In State of Orissa v. Dr. Binapani Dei (AIR 1967 SC
regards judicial and quasi-judicial orders: 1269) Justice Shah, speaking for the Court observed that the
B B
duty to act judicially arose from the very nature of the function
“16. Without going into the numerous cases cited before intended to be performed. It need not be shown to be
us, it may be safely laid down that an order will be a superadded. The Court held:
judicial or quasi-judicial order if it is made by a court or
a judge, or by some person or authority who is legally “If there is power to decide and determine to the prejudice
bound or authorised to act as if he was a court or a judge. C C of a person, duty to act judicially is implicit in the exercise
To act as a Court or a judge necessarily involves giving of such power.”
an opportunity to the party who is to be affected by an
order to make a representation, making some kind of 36. In A.K. Kraipak v. Union of India (1969) 2 SCC 262,
enquiry, hearing and weighing evidence, if any, and Hegde, J., as His Lordship then was, recognised that the
considering all the facts and circumstances bearing on D D dividing line between an administrative power and a quasi-
the merits of the controversy before any decision affecting judicial power was fast vanishing. What was important, declared
the rights of one or more parties is arrived at. The the Court, was the duty to act judicially which implies nothing
procedure to be followed may not be as elaborate as in but a duty to act justly and fairly and not arbitrarily or capriciously.
a court of law and it may be very summary, but it must The Court observed:
contain the essential elements of judicial procedure as E E “13. The dividing line between an administrative power
indicated by me. and a quasi-judicial power is quite thin and is being
xxx xxx xxx gradually obliterated. For determining whether a power is
an administrative power or a quasi-judicial power one has
xxx xxx xxx to look to the nature of the power conferred, the person
F F or persons on whom it is conferred, the framework of the
… The mere fact that an executive authority has to decide law conferring that power, the consequences ensuing from
something does not make the decision judicial. It is the the exercise of that power and the manner in which that p
manner in which the decision has to be arrived at which wer is expected to be exercised. Under our Constitution t
makes the difference and the real test is: Is there any duty e rule of law pervades over the entire fiel
to decide judicially?” G G
of administration. Every organ of the State under our Consti
34. The detailed concurrent opinion of Justice Das, in the ution is regulated and controlled by the rule of law. In a
same case, also agreed with the above test for determining welfare State like ours it is inevitable that the jurisdiction
whether a particular act is a judicial or an administrative one. of the administrative bodies is increasing at a rapid rate.
Das J., observed: The concept of rule of law would lose its vitality if the
H H
instrumentalities of the State are not charged with the duty A A lifeless, absurd, stultifying, self-defeating or plainly
of discharging their functions in a fair and just manner. contrary to the common sense of the situation.”
The requirement of acting judicially in essence is nothing
but a requirement to act justly and fairly and not arbitrarily 38. Recently this Court in Jamal Uddin Ahmad v. Abu
or capriciously. The procedures which are considered Saleh Najmuddin (2003) 4 SCC 257 dealt with the nature of
inherent in the exercise of a judicial power are merely B distinction between judicial or ministerial functions in the
B
those which facilitate if not ensure a just and fair decision. following words:
In recent years the concept of quasi-judicial power has
“14. The judicial function entrusted to a Judge is
been undergoing a radical change. What was considered
inalienable and differs from an administrative or
as an administrative power some years back is now
ministerial function which can be delegated or
being considered as a quasi-judicial power.” C C performance whereof may be secured through
37. To the same effect is the decision of this Court in authorization.“The judicial function consists in the
Mohinder Singh Gill. v. Chief Election Commission (1978) 1 interpretation of the law and its application by rule or
SCC 405 where Krishna Iyer, J. speaking for the Court discretion to the facts of particular cases. This involves
observed: the ascertainment of facts in dispute according to the law
D D of evidence. The organs which the State sets up to
“48. Once we understand the soul of the rule as fairplay exercise the judicial function are called courts of law or
in action — and it is so — we must hold that it extends courts of justice. Administration consists of the
to both the fields. After all, administrative power in a operations, whatever their intrinsic nature may be, which
democratic set-up is not allergic to fairness in action and are performed by administrators; and administrators are
discretionary executive justice cannot degenerate into E E all State officials who are neither legislators nor judges.”
unilateral injustice. Nor is there ground to be frightened (See Constitutional and Administrative Law, Phillips and
of delay, inconvenience and expense, if natural justice Jackson, 6th Edn., p. 13.) P. Ramanatha Aiyar's Law
gains access. For fairness itself is a flexible, pragmatic Lexicon defines judicial function as the doing of
and relative concept, not a rigid, ritualistic or something in the nature of or in the course of an action
sophisticated abstraction. It is not a bull in a china shop, F F in court. (p. 1015) The distinction between “judicial” and
nor a bee in one's bonnet. Its essence is good “ministerial acts” is: If a Judge dealing with a particular
conscience in a given situation: nothing more — but matter has to exercise his discretion in arriving at a
nothing less. The “exceptions” to the rules of natural decision, he is acting judicially; if on the other hand, he
justice are a misnomer or rather are but a shorthand is merely required to do a particular act and is precluded
form of expressing the idea that in those exclusionary G from entering into the merits of the matter, he is said to
G
cases nothing unfair can be inferred by not affording an be acting ministerially. (pp. 1013-14). Judicial function is
opportunity to present or meet a case. Text-book excerpts exercised under legal authority to decide on the disputes,
and ratios from rulings can be heaped, but they all after hearing the parties, maybe after making an enquiry,
converge to the same point that audi alteram partem is and the decision affects the rights and obligations of the
the justice of the law, without, of course, making law parties. There is a duty to act judicially. The Judge may
H H
construe the law and apply it to a particular state of facts A A have already been transferred back to the Arthur Road Jail in
presented for the determination of the controversy. A Bombay. Nothing further, in that view, needs to be done by this
ministerial act, on the other hand, may be defined to be Court in that regard at this stage.
one which a person performs in a given state of facts, in
a prescribed manner, in obedience to the mandate of a 40. That leaves us with the only other aspect namely
legal authority, without regard to, or the exercise of, his whether the High Court was justified in directing the
B B
own judgment upon the propriety of the act done. (Law Government to hold an inquiry against those responsible for
Lexicon, ibid., p. 1234). In ministerial duty nothing is left using excessive force and for dereliction of duty by the medical
to discretion; it is a simple, definite duty.” officer. As noticed earlier by us the said direction has been
issued entirely on the basis of the report submitted by the
39. Applying the above principles to the case at hand and Sessions Judge. That report besides being preliminary is
keeping in view the fact that any order that the Court may make C C flawed in many respects including the fact that the same does
on a request for transfer of a prisoner is bound to affect him not comply with the basic requirement of a fair opportunity of
prejudicially, we cannot but hold that it is obligatory for the Court hearing being given to those likely to be affected. It is true that
to apply its mind fairly and objectively to the circumstances in the statements of some of the jail officials have also been
which the transfer is being prayed for and take a considered recorded in the course of the inquiry but that is not enough.
view having regard to the objections which the prisoner may D D Those indicted in the report were entitled to an opportunity to
have to offer. There is in that process of determination and cross-examine those who alleged misconduct against them. Not
decision-making an implicit duty to act fairly, objectively or in only that the Sessions Judge has not named the officers
other words to act judicially. It follows that any order of transfer responsible for the alleged use of excessive force which was
passed in any such proceedings can be nothing but a judicial essential for any follow up or further action in the matter. The
order or at least a quasi-judicial one. Inasmuch as the trial court E E Sessions Judge has observed:
appears to have treated the matter to be administrative and
accordingly permitted the transfer without issuing notice to the “I am avoiding naming the officers of the jail against
under-trials or passing an appropriate order in the matter, it whom allegations of use of force are made as I am
committed a mistake. A communication received from the expected to give findings only on the aforesaid five points
prison authorities was dealt with and disposed of at an F F and as officers who took part in the action, officers who
administrative level by sending a communication in reply without gave orders of or the officers who did not oppose the
due and proper consideration and without passing a action cannot be segregated.”
considered judicial order which alone could justify a transfer in
41. So, also the report clearly states the officials concerned
the case. Such being the position the High Court was right in
have not been allowed to examine any witness although a
declaring the transfer to be void and directing the re-transfer G G request was made by them to do so. Such being the position,
of the undertrials to Bombay jail. It is common ground that the
some of the observations made by the High Court that give an
stay of the proceedings in three trials pending against the
impression as though the misdemeanour of the jail officers had
respondents has been vacated by this Court. Appearance of
been proved, do not appear to be justified. It was at any rate
the undertrials would, therefore, be required in connection with
not for the High Court to record a final and authoritative finding
the proceedings pending against them for which purpose they H H that the force used by the jail authorities was excessive or that
it was used for any extraneous purpose. It was a matter that A A we have adopted, however, is that whatever be the challenges
could be determined only after a proper inquiry was conducted posed by such dark forces, the country’s commitment to the Rule
and an opportunity afforded to those who were accused of using of Law remains steadfast. Courts in this country have protected
such excessive force or abusing the power vested in them. and would continue to protect the ideals of the rights of the
Consequential directions issued by the High Court in directing citizen being inviolable except in accordance with the procedure
the State Government to initiate disciplinary inquiry against all B B established by law.
the officers involved in the incident were, therefore, premature.
We say so because the question whether any disciplinary 43. In the result we allow these appeals but only in part and
inquiry needs to be instituted against the jail officials would to the extent that the Government shall treat the report submitted
depend upon the outcome of a proper investigation into the by the Sessions Judge as a preliminary inquiry and take a
incident and not a preliminary enquiry in which the Investigating considered decision whether or not any further inquiry,
C C investigation or proceedings against those allegedly
Officer, apart from statements of the respondents, makes use
of information discreetly collected from the jail inmates. The responsible for using excessive force while restoring discipline
report of the Sessions Judge could in the circumstances in the Central Jail at Bombay on 26th June, 2008 needs to be
provide no more than a prima facie basis for the Government conducted. We make it clear that if the Government decides
to consider whether any further investigation into the incident to hold any further inquiry or investigation into the matter on the
was required to be conducted either for disciplinary action or D D basis of the preliminary findings in the report submitted by the
for launching prosecution of those found guilty. Beyond that the Sessions Judge or institute any departmental proceedings
preliminary report could not in view of what we have said above against any one of those found guilty in any such further inquiry
serve any other purpose. or investigation, the observations made by the High Court in
regard to the use of force or the extent thereof shall not prejudice
42. In a country governed by the rule of law police excesses E E the parties concerned or the outcome of any such inquiry nor
whether inside or outside the jail cannot be countenanced in shall any such observation be treated to be a final expression
the name of maintaining discipline or dealing with anti-national of opinion regarding the guilt or innocence of the concerned.
elements. Accountability is one of the facets of the rule of law. The parties are left to bear their own costs.
If anyone is found to have acted in breach of law or abused his
position while exercising powers that must be exercised only B.B.B. Appeals Partly allowed.
F F
within the parameters of law, the breach and the abuse can be
punished. That is especially so when the abuse is alleged to
have been committed under the cover of authority exercised by
people in uniform. Any such action is also open to critical
scrutiny and examination by the Courts. Having said that we G
cannot ignore the fact that the country today faces challenges
and threats from extremist elements operating from within and
outside India. Those dealing with such elements have at times
to pay a heavy price by sacrificing their lives in the discharge
of their duties. The glory of the constitutional democracy that
H
MADALA VENKATA NARSIMHA RAO A A aid. She died on her way to the hospital. In post-mortem
v. report (Exbt. P-9), the doctor opined that the deceased
STATE OF A.P. was also raped.
(Criminal Appeal No. 393 of 2009)
Trial Court acquitted the accused of all the charges.
NOVEMBER 27, 2012 High Court reversing the acquittal, convicted the accused
B B
u/ss. 302 and 376 IPC. Hence the present appeal.
[SWATANTER KUMAR AND MADAN B. LOKUR, JJ.]
Partly allowing the appeal, the Court
Penal Code, 1860 – ss. 302 and 376 – Rape and Murder
– Circumstantial evidence – Three witnesses saw the accused HELD: 1.1 To secure a conviction on circumstantial
coming out of the house of the victim – Blood-stains on the C C evidence, the prosecution must prove its case by cogent,
clothes of the accused – Victim telling the witnesses that the reliable and admissible evidence. Each relevant
accused had assaulted her – In post-mortem, the doctor circumstance must be proved like any other fact and
opined that rape was committed on the accused – Trial court upon a composite reading thereof, it must lead to a high
acquitted the accused of both the charges – High Court degree of probability that it is only the accused and none
convicted the accused – On appeal, held: There was sufficient D D other who has committed the alleged offence. [Para 21]
evidence to hold the appellant guilty of committing the murder [960-C-D]
– But no cogent or admissible evidence regarding rape of the
Munna Kumar Upadhyay v. State of A.P. (2012) 6 SCC
victim – The only evidence as regards rape is the opinion of
174 – relied on.
the doctor who conducted post-mortem, which was not safe to
rely upon as the doctor was not examined as a witness. E E 1.2. In the present case, the presence of the appellant
at the scene of the crime, moments after it was
Appellant-accused was prosecuted for having raped
discovered, is not in dispute. In fact, he was running away
and murdered a girl. The prosecution case was that when
from inside the house where the crime was committed.
the victim/deceased was alone at home, her brother had
While doing so, he pushed the persons who were
sent the appellant-accused to the house for some work.
F F entering the house on hearing the cries of the deceased.
PWs 3, 4 and 5 were standing near the house of the victim.
This is proved by the consistent testimony of each one
When they heard the cry from the house of the victim, and
of them. There is nothing in the cross-examination of
when they went to the house, they saw the accused
these witnesses to suggest that they had cooked up a
running out of the house in blood-stained clothes and he
story to implicate the appellant. There is no explanation
ran away from there pushing them away. The accused
for this strange conduct whatsoever. The appellant had
was also seen on the streets with blood-stained clothes G G
also blood-stains on his clothes at that time and he was
by PW-7. The victim told PWs 3, 4 and 5 that the appellant
also seen running on the street in that condition
hit her with chutney grinder, as she had slapped him on
independently by PW7 who reached the scene of crime
his holding her hand. PW-8 (doctor) administered her first-
soon thereafter when the deceased was being taken
951 H away for administration of first-aid. The eye-witness
H
MADALA VENKATA NARSIMHA RAO v. STATE OF 953 954 SUPREME COURT REPORTS [2012] 11 S.C.R.
A.P.
account, moments after the discovery of the crime is so A A 1.5. The primary duty of the Trial Judge is to
overwhelming, coupled with the conduct of the appellant, determine the facts and then test the theory put forward
that only one conclusion is possible which is that the by the prosecution. In this regard, the Trial Judge has
murder of the deceased was committed by the appellant. failed in this duty. The Trial Court has not considered the
[Paras 22, 23, 24 and 25] [960-E-H; 961-A-C] events in totality but has disjointedly read the statements
B B of the witnesses and has picked up minor discrepancies
1.3. Even the deceased gave virtually a dying and highlighted them. The result of this approach is that
declaration in which she narrated the sequence of events the Trial Court has cast doubt on almost every aspect of
including the fact that the appellant had hit her with a the case. [Para 14] [958-A-C]
chutney grinder on her head and other parts of her body.
There is no reason at all why the deceased should falsely 2.1. On the issue of the appellant having raped the
C C deceased, there is virtually no evidence except the final
implicate the appellant of such a heinous crime. Her
statement on this aspect may be contrasted with her opinion of the doctor who had conducted the post-
statement on the issue of rape, in which she did not say mortem Exhibit P-9. The deceased did not inform PWs 3,
a word to implicate the appellant. There is, therefore, more 4 and 5 that she was raped or attempted to be raped by
than a ring of truth in the statement made by her, the appellant. All that she said was that the appellant
moments before her death to PWs 3, 4 and 5. In this view D D caught hold of her hand. Thereupon, she slapped the
of the matter, on an overall consideration of all the facts appellant which led him to pick up the chutney grinder
of the case, there is no doubt that the appellant alone and hit her on the head and other parts of her body. There
caused the murder. [Paras 26 and 27] [961-C-F] does not seem to be anything in the testimony of PWs 3,
4 and 5 to suggest that the deceased was raped or an
1.4. It cannot be accepted that since there were a E E attempt was made to rape her. The evidence of the doctor
large number of discrepancies in the testimonies of who administered first-aid to the deceased also does not
various witnesses, as pointed out by the Trial Judge, the give any indication of her having been violated. Even the
benefit thereof must go to the appellant. The complaint made by PW3 to the police does not mention
discrepancies noted by the Trial Judge, such as the time anything about the deceased having been raped. The
of recording of the first information report, the time of F F only evidence in this regard is the final opinion of the
commencement of investigations by the police, the doctor. However, in the absence of the doctor having
absence of any clear evidence to suggest who informed entered the witness box, it would not be safe to rely on
PW1 and PW2, does not take away the substratum of the the medical opinion that the deceased was raped. [Paras
case of the prosecution. If, an overall picture of the events 28, 29 and 30] [961-G-H; 962-A-D]
is taken into consideration, it will be clear that the G G
discrepancies pointed out pale into insignificance and do 2.2. Merely because some semen was collected from
not affect the substratum of the case for the prosecution. the person of the deceased or the trousers of the
[Paras 33, 34 and 35] [962-F-H; 963-C] appellant, does not ipso facto lead to the conclusion that
he had raped her. On the basis of the facts on record,
Syed Ahmed v. State of Karnataka (2012) 8 SCC 527 –
relied on. H H
A.P.
there is no evidence to suggest that the appellant had A A his sister, Lalitha, who was at their residence.
raped the deceased. [Paras 31 and 32] [962-E-F]
3. According to Subrahmanyam, the appellant did not turn
Case Law Reference up for some time and at about 8.15 a.m. his uncle, PW-3
Lakshmi Narayana came to the kirana shop and informed him
(2012) 6 SCC 174 Relied on Para 21
that his sister, Lalitha, was lying badly injured at their residence.
B B
(2012) 8 SCC 527 Relied on Para 34 Both of them then rushed to the residence where they picked
up Lalitha and took her to a local doctor PW -8 Kasi
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Viswanadham who administered first-aid. However, considering
No. 393 of 2009. Lalitha’s serious condition, she was advised to be shifted to
Rajamundry. Transport was arranged to take her to Rajamundry
From the Judgment & Order dated 14.2.2008 of the High C C but she died en route. Her body was then brought back and
Court of Judicature Andhra Pradesh at Hyderabad in Criminal
kept in the front courtyard of the house.
Appeal No. 42 of 2006.
4. In the meanwhile, Srimannarayan was informed about
Vikas Upadhyay (for B.S. Banthia) for the Appellant.
the incident by another daughter and he rushed back to his
Shishir Pinaki, Suchitra Hranghwal (for D. Mahesh Babu) D D residence at about 9.30 a.m. by which time Lalitha had died.
for the Respondent.
5. After conducting necessary investigations, on the basis
The Judgment of the Court was delivered by of a first information report lodged by Lakshmi Narayana, a
challan was filed by the police in which it was alleged that the
MADAN B. LOKUR, J. 1. The question for consideration appellant had raped Lalitha and had murdered her.
is whether the High Court was right in setting aside the acquittal E E
of the appellant for the murder of Lalitha and whether she was 6. According to the prosecution, Lakshmi Narayana, the
raped before her murder. In our opinion, there is sufficient uncle of Subrahmanyam and elder brother of Srimannarayana
evidence to hold the appellant guilty of committing the murder was asked by Srimannarayana to look after his residence in
of Lalitha, but no cogent or admissible evidence of her having his absence. In this connection, Lakshmi Narayana went to their
been raped. F F residential house at about 8 a.m. or so. There he found some
neighbors PW-4 Purnachandra Rao and PW-5 Venkateswara
The facts: Rao chitchatting and he joined them in the conversation.
Suddenly, they heard some cries emanating from inside the
2. On 4th December, 1998 PW-1 Srimannarayana and his
house of Srimannarayana and while they were entering the
wife had gone to village Jangareddygudem at about 6.00 a.m.
G G house in response to the cries, the appellant came running out
for the purpose of fixing a matrimonial alliance for their daughter,
of the house with blood-stained clothes, pushed them and ran
Lalitha. Later that day, at about 7/7.30 a.m. PW-2
away.
Subrahmanyam son of Srimannarayana and brother of Lalitha
opened their kirana shop. He then instructed the appellant who 7. When Lakshmi Narayana, Purnachandra Rao and
had been working with the family for the last about 10 years to Venkateswara Rao entered the house they found Lalitha lying
get some tiffin from a hotel, deliver it to him and then deliver to H H
A.P. [MADAN B. LOKUR, J.]
in a pool of blood and she informed them that the appellant had A A Trial Court leave much to be desired. The Trial Judge has not
got hold of her hand whereupon she slapped him. He then determined any facts, but has only found loop-holes in the oral
picked up a chutney grinder and hit her on the head and other evidence. The primary duty of the Trial Judge is to determine
parts of the body and stabbed her with a knife. She asked these the facts and then test the theory put forward by the prosecution.
persons for medical assistance and was then taken to the local In this regard, the Trial Judge has unfortunately failed in this
doctor. B B duty.
8. After her death, a post-mortem examination was 14. The Trial Court has not considered the events in totality
conducted on Lalitha by Dr. K. Shymala Devi who gave the final but has disjointedly read the statements of the witnesses and
opinion Exhibit P-9 that Lalitha was raped. However, this doctor has picked up minor discrepancies and highlighted them. The
did not enter the witness box.
C C result of this approach is that the Trial Court has cast doubt on
almost every aspect of the case. It has cast doubt on the
9. It may be mentioned that after the appellant ran out of
lodging of the first information report; it has doubted the arrest
the house, he was seen running on the street with blood-stained
of the appellant; the presence of Lakshmi Narayana,
clothes by PW-7 N. Visweswara Rao who was returning from
Purnachandra Rao and Venkateswara Rao at the scene of the
a temple. While N. Visweswara Rao was passing the house
crime; the testimony of Srimannarayana and Subrahmanyam
of Srimannarayana, he found some people gathered over there D D
as well as N. Venkateswara Rao. In other words, the Trial Court
and saw Lalitha in a pool of blood and Lakshmi Narayana,
did not believe any of the material witnesses and concluded
Purnachandra Rao and Venkateswara Rao preparing to
that the entire story was cooked up to implicate the appellant.
remove her.
On this basis, the appellant was acquitted.
10. The defence put up by the appellant was that in fact E E 15. However, the Trial Court did not err in its conclusion
he had not committed the crime but had discovered it.
on the allegation of the prosecution that Lalitha was raped. In
11. On these broad facts, the Trial Court by its order dated this regard, the Trial Court noted that Lalitha did not say that
18th June 2004 passed in Sessions Case No.163/99 found the she was raped and only stated that the appellant caught hold
evidence insufficient to convict the appellant of the charge of of her hand. But, the Trial Court erroneously proceeded on the
rape or murder. This view was reversed in appeal by the High F F basis that rape can be committed only behind closed doors
Court by its judgment and order dated 14th February 2008 and since there was no evidence that the doors of the house
passed in Criminal Appeal No.42 of 2006. The High Court were closed, Lalitha could not have been raped. The Trial Court
convicted the appellant of the crime of rape and murder and noted that the complaint lodged by Lakshmi Narayana did not
sentenced him to imprisonment for life. mention that Lalitha was raped. It also noted that even the local
G G doctor Kasi Viswanadham who administered first aid did not
12. It is under these circumstances that the matter is now notice any evidence of rape. The Trial Court failed to note that
before us. the final medical opinion given by Dr. K. Shymala Devi could
not be accepted since the doctor did not enter the witness box
Decision of the Trial Court: to support the post-mortem report. Be that as it may, the Trial
13. The analysis of the evidence and the decision of the H H Court concluded that Lalitha was not raped.
Decision of the High Court: A A evidence that Lalitha had been raped and even in this regard
the conclusion of the High Court was faulty. It was finally
16. The High Court disagreed with the Trial Court on every submitted by learned counsel for the appellant that there were
aspect of the case. It was found that the evidence of Lakshmi far too many discrepancies in the evidence of the witnesses,
Narayana, Purnachandra Rao and Venkateswara Rao was as brought out by the Trial Judge, and they could not be ignored.
consistent on material issues. They had seen the appellant in B B The cumulative effect of all these discrepancies casts a doubt
blood-stained clothes pushing them and running away from the on the case of the prosecution and the benefit of this must go
scene of the crime. In fact, the appellant was also seen running to the appellant.
with blood stained clothes on the street by N. Venkateswara
Rao. Discussion:
17. The High Court noted that appellant admitted his C C 21. The law on appreciation of circumstantial evidence is
presence at the scene of the crime since he claimed to have now too well settled to bear any repetition. Suffice it to say that
reached there soon after the crime was committed. The High to secure a conviction on circumstantial evidence, the
Court found that under these circumstances there was no prosecution must prove its case by cogent, reliable and
explanation for his conduct of running away from the scene of admissible evidence. Each relevant circumstance must be
the crime if in fact he had not committed any offence. D D proved like any other fact and upon a composite reading
thereof it must lead to a high degree of probability that it is only
18. The High Court also took into consideration the fact the accused and none other who has committed the alleged
that Lalitha, while gasping for life, clearly stated that the offence. In this regard, reference may be made to Munna
appellant had hit her with a chutney grinder and all these facts Kumar Upadhyay v. State of A.P., (2012) 6 SCC 174
put together clearly indicated that the appellant had murdered E E (authored by one of us, Swatanter Kumar, J).
Lalitha.
22. In our case, the presence of the appellant at the scene
19. On the issue whether Lalitha had been raped, the High of the crime moments after it was discovered is not in dispute.
Court found that the post mortem report Exhibit P-9 established In fact, he was running away from inside the house where the
that Lalitha was raped and on this basis, the conclusion arrived crime was committed. While doing so, he pushed Lakshmi
at by the Trial Judge was reversed and the appellant convicted F F Narayana, Purnachandra Rao and Venkateswara Rao who
for having raped Lalitha. were entering the house on hearing the cries of Lalitha. This is
proved by the consistent testimony of each one of them. There
Submissions: is nothing in the cross-examination of these witnesses to
20. The principal contention of learned counsel for the suggest that they had cooked up a story to implicate the
G G appellant.
appellant was that the case is one of circumstantial evidence
and however strong the suspicion may be, it cannot take place 23. The presence of the appellant having been conclusively
of proof. There were no eye witnesses to the crime and, established, there should be some reason why he ran away
therefore, it cannot be conclusively said that the appellant had from the scene of the crime if in fact he was the one who had
murdered Lalitha. It was also contended that there was no
H H discovered it and not the one who had committed it. There is
no explanation for this strange conduct whatsoever. To say that A A Thereupon, Lalitha slapped the appellant which led him to pick
the appellant is a rustic villager is neither here nor there. up the chutney grinder and hit her on the head and other parts
of her body. There does not seem to be anything in the
24. In this context, it is not possible to overlook the fact that testimony of Lakshmi Narayana, Purnachandra Rao and
the appellant had blood-stains on his clothes at that time and Venkateswara Rao to suggest that Lalitha was raped or an
he was also seen running on the street in that condition B B attempt was made to rape her.
independently by N. Venkateswara Rao, who reached the
scene of crime soon thereafter when Lalitha was being taken 29. The evidence of the doctor Kasi Viswanadham who
away for administration of first-aid. administered first-aid to Lalitha also does not give any
indication of Lalitha having been violated. Even the complaint
25. The eye witness account, moments after the discovery made by Lakshmi Narayana to the police does not mention
of the crime is so overwhelming, coupled with the conduct of C C anything about Lalitha having been raped.
the appellant, that only one conclusion is possible which is that
the murder of Lalitha was committed by the appellant. 30. As mentioned above, the only evidence in this regard
is the final opinion of Dr. K. Shymala Devi which is Exhibit P-
26. In addition, it must be appreciated that even Lalitha 9. However, in the absence of the doctor having entered the
gave virtually a dying declaration in which she narrated the D D witness box, it would not be safe to rely on the medical opinion
sequence of events including the fact that the appellant had hit that Lalitha was raped.
her with a chutney grinder on her head and other parts of her
body. There is no reason at all why Lalitha should falsely 31. We are also of the opinion that merely because some
implicate the appellant of such a heinous crime. Lalitha’s semen was collected from the person of Lalitha or the trousers
statement on this aspect may be contrasted with her statement E of the appellant does not ipso facto lead to the conclusion that
E
on the issue of rape, in which she did not say a word to he had raped her.
implicate the appellant. There is, therefore, more than a ring of
truth in the statement made by Lalitha moments before her 32. On the basis of the facts on record, we hold that there
death to Lakshmi Narayana, Purnachandra Rao and is no evidence to suggest that the appellant had raped Lalitha.
Venkateswara Rao.
F F 33. We are not inclined to accept the contention of learned
27. In this view of the matter, on an overall consideration counsel for the appellant that since there were a large number
of all the facts of the case, we have no doubt that the appellant of discrepancies in the testimonies of various witnesses, as
alone caused the murder of Lalitha. pointed out by the Trial Judge, the benefit thereof must go to
the appellant.
28. On the issue of the appellant having raped Lalitha, we G G
find that there is virtually no evidence to this effect except the 34. The discrepancies noted by the Trial Judge, such as
final opinion Exhibit P-9. As noted above, Lalitha did not inform the time of recording of the first information report, the time of
Lakshmi Narayana, Purnachandra Rao or Venkateswara Rao commencement of investigations by the police, the absence of
that she was raped or attempted to be raped by the appellant. any clear evidence to suggest who informed Srimannarayana
All that she said was that the appellant caught hold of her hand. or Subrahmanyam does not take away the substratum of the
H H case of the prosecution. What are minor discrepancies and
MADALA VENKATA NARSIMHA RAO v. STATE OF 963 [2012] 11 S.C.R. 964
their impact has been dealt with in Syed Ahmed v. State of A A SUKHDEV SINGH
Karnataka, (2012) 8 SCC 527 (authored by one of us Lokur, v.
J) and we need not repeat the view taken. STATE OF HARYANA
(Criminal Appeal No. 2118 of 2008)
35. The substantive case of the prosecution is that Lalitha
was murdered in her house. There is no doubt about this, nor DECEMBER 13, 2012
B B
is there any doubt that almost immediately thereafter (on
hearing her cries) Lakshmi Narayana, Purnachandra Rao and
Venkateswara Rao saw the appellant running away from the
house in blood-stained clothes. There is also no doubt that Narcotic Drugs and Psychotropic Substances Act, 1985
these persons were informed by Lalitha that the appellant hit – s.42(2) [as pre-amended] and s.15 – Reporting of
her with a chutney grinder. If, on these basic facts, an overall C C information reduced to writing to higher officer – Non-
picture of the events is taken into consideration, it will be clear compliance – Effect – Held: On facts, the information was
that the discrepancies pointed out pale into insignificance and received by PW1 Investigating Officer on 4th February, 1994,
do not affect the substratum of the case for the prosecution. thus, s.42(2) as amended w.e.f. 2nd October,2001 vide
Amending Act No.9 of 2001 would not apply, and instead the
36. As we have noted above, the Trial Judge has not D D pre-amended s.42(2) would govern the case – PW1, while on
thought it fit to determine facts but only thought it appropriate patrol duty, had received secret information against the
to find out the smallest inconsistency or disagreement in the accused – However, as per the statement of PW1, no effort
testimony of the witnesses so as to discredit them. This is not was made by him to reduce the information into writing and
the correct approach for the Trial Court to adopt and, in fact, inform his higher authorities instantaneously or even after a
the High Court has characterized this as perverse. We say E E reasonable delay – PW1 had more than sufficient time at his
nothing on this and leave it at that. disposal to comply with the provisions of s.42 – He had
received the secret information at 11.30 a.m., but he reached
Conclusion: the house of the accused at 2 p.m. even when the distance
was only 6 kilometers away and he was in a jeep – Not an
37. Under these circumstances, we have no hesitation in
F iota of evidence, either in the statement of PW1 or in any other
upholding the view of the High Court that the appellant is guilty F
documentary form, to show what PW1 was doing for these two
of committing the murder of Lalitha. However, we are of the
hours and what prevented him from complying with the
opinion that there is no evidence that the appellant had raped
provisions of s.42 – There was patent illegality in the
Lalitha.
prosecution case, which was incurable – Relief granted to the
38. The appeal is accordingly allowed in part and the accused – Conviction u/s.15 as recorded by Courts below set
G G
conviction and sentence awarded to the appellant for an offence aside – Accused acquitted.
punishable under Section 302 of the IPC is confirmed.
Narcotic Drugs and Psychotropic Substances Act, 1985
K.K.T. Appeal partly allowed. – s.42(2) – Reporting of information reduced to writing to
H 964
SUKHDEV SINGH v. STATE OF HARYANA 965 966 SUPREME COURT REPORTS [2012] 11 S.C.R.
higher officer – Amendment of sub-section (2) of s.42 w.e.f. A A conducted and five bags were found lying concealed
2nd October, 2001 vide Amending Act 9 of 2001 – Effect – under a heap of chaff in the courtyard of the house of the
Held: After amendment of this sub-section, the words accused. Notice was served upon the accused under
‘forthwith’ stood amended by the words ‘within 72 hours’ – Section 50 of the Narcotic Drugs and Psychotropic
Resultantly, absolute certainty brought in by binding the Substances Act, 1985 (‘NDPS Act’) giving him an offer to
officer concerned to send the intimation to the superior officer B B be searched before a Gazetted Officer or a Magistrate.
within 72 hours from the time of receipt of information – The The accused expressed his desire to be searched before
amendment is suggestive of the legislative intent that a Gazetted Officer of the police. PW1 thereupon sent an
information must reach the superior officer not only application to the Deputy Superintendent of Police (DSP)
expeditiously or forthwith but definitely within the time who reached the spot and upon his instruction the search
contemplated under the amended sub-section (2) of s.42 – C C of the bags was conducted. From each gunny bag, 100
This provides greater certainty to the time in which the action grams of chura post was separated as sample. The
should be taken as well as renders the safeguards provided samples and the gunny bags were sealed and taken into
to an accused more meaningful. possession. Thereafter a ruqa was sent to the police
station where FIR was registered under the NDPS Act.
Narcotic Drugs and Psychotropic Substances Act, 1985 The trial court held the accused guilty under Section 15
– s.42(2) – Amendment of, vide Amending Act No.9 of 2001 D D
of the NDPS Act and sentenced him to 10 years’ rigorous
– Applicability of the Amending Act – Held: Cannot be with imprisonment. The High Court declined to interfere with
retrospective effect – The law as it existed at the time of the judgment of the trial Court and therefore the instant
commission of the offence would be the law which will govern appeal.
the rights and obligations of the parties under the NDPS Act
– Settled principle of interpretation of criminal jurisprudence E E The only contention raised before this Court on
that the provisions have to be strictly construed and cannot behalf of the appellant was that the prosecution case
be given a retrospective effect unless legislative intent and ought to fail for total non-compliance of the mandatory
expression is clear beyond ambiguity. statutory provisions of Section 42(2) of the NDPS Act;
and thus the accused was entitled to acquittal.
Narcotic Drugs and Psychotropic Substances Act, 1985 F F
– s.42 – Compliance with – Is mandatory and not optional – Allowing the appeal, the Court
Incumbent duty of every investigating officer to comply with
the provisions of s.42 in true substance and spirit in HELD:1.1. Section 42 of the NDPS Act can be divided
consonance with the law stated by this Court in the case of into two different parts. First is the power of entry, search
Karnail Singh. seizure and arrest without warrant or authorisation as
G G contemplated under sub-section (1) of the said section.
PW1(ASI), while on patrol duty, received secret Second is reporting of the information reduced to writing
information against the accused that he was in the habit to a higher officer in consonance with sub-section (2) of
of selling chura post (poppy husk) in his house and if a that section. Sub-section (2) of Section 42 had been a
raid is conducted upon the house of the accused, he can matter of judicial interpretation as well as of legislative
be caught red-handed with the contraband. Search was H H concern in the past. Sub-section (2) was amended by the
Parliament vide Act 9 of 2001 with effect from 2nd A A judgment of conviction dated 4th July, 1998. Thus, it will
October, 2001. After amendment of this sub-section, the be the unamended Section 42(2) of the NDPS Act that
words ‘forthwith’ stood amended by the words ‘within 72 would govern the present case. The provisions of
hours’. In other words, whatever ambiguity or leverage Section 42 are intended to provide protection as well as
was provided for under the unamended provision, was lay down a procedure which is mandatory and should be
clarified and resultantly, absolute certainty was brought B B followed positively by the Investigating Officer. He is
in by binding the officer concerned to send the intimation obliged to furnish the information to his superior officer
to the superior officers within 72 hours from the time of forthwith. That obviously means without any delay. But
receipt of information. The amendment is suggestive of there could be cases where the Investigating Officer
the legislative intent that information must reach the instantaneously, for special reasons to be explained in
superior officer not only expeditiously or forthwith but C C writing, is not able to reduce the information into writing
definitely within the time contemplated under the and send the said information to his superior officers but
amended sub-section (2) of Section 42. This provides a could do it later and preferably prior to recovery.
greater certainty to the time in which the action should Compliance of Section 42 is mandatory and there cannot
be taken as well as renders the safeguards provided to be an escape from its strict compliance. [Para 18] [981-
an accused more meaningful. In the present case, the A-D]
D D
information was received by the empowered officer on
4th February, 1994 when the unamended provision was 1.4. As per the statement of PW1, no effort was made
in force. The law as it existed at the time of commission by him to reduce the information into writing and inform
of the offence would be the law which will govern the his higher authorities instantaneously or even after a
rights and obligations of the parties under the NDPS Act. reasonable delay which has to be explained with
[Para 14] [978-D-H; 979-A-B] E E reasons in writing. On the contrary, in the present case,
the Investigating Officer PW1 had more than sufficient
1.2. No law can be interpreted so as to frustrate the time at his disposal to comply with the provisions of
very basic rule of law. It is a settled principle of Section 42. Admittedly, he had received the secret
interpretation of criminal jurisprudence that the information at 11.30 a.m., but he reached the house of the
provisions have to be strictly construed and cannot be F F accused at 2 p.m. even when the distance was only 6
given a retrospective effect unless legislative intent and kilometers away and he was in a jeep. There is not an iota
expression is clear beyond ambiguity. The amendments of evidence, either in the statement of PW 1 or in any
to criminal law would not intend that there should be other documentary form, to show what the Investigating
undue delay in disposal of criminal trials or there should Officer was doing for these two hours and what
be retrial just because the law has changed. Such an G G prevented him from complying with the provisions of
approach would be contrary to the doctrine of finality as Section 42 of NDPS Act. [Para 21] [983-D-F]
well as avoidance of delay in conclusion of criminal trial.
[Para 15] [980-C-D] 1.5. There is patent illegality in the case of the
prosecution and such illegality is incurable. This is a case
1.3.In the present case, the occurrence was of 4th of total non-compliance, thus the question of substantial
February, 1994. The trial of the accused concluded by H H
compliance would not even arise for consideration of the A A Karnail Singh v. State of Haryana (2009) 8 SCC 539:
Court in the present case. The twin purpose of the 2009 (11) SCR 470 – followed.
provisions of Section 42 which can broadly be stated are
that : (a) it is a mandatory provision which ought to be Basheer @ N.P. Basheer v. State of Kerala (2004) 3 SCC
construed and complied strictly; and (b) compliance of 609: 2004 (2) SCR 224; Jawahar Singh @ Bhagat Ji. v. State
furnishing information to the superior officer should be B of GNCT of Delhi (2009) 6 SCC 490: 2009 (7) SCR 495;
B
forthwith or within a very short time thereafter and Ravinder Singh v. State of Himachal Pradesh (2009) 14 SCC
preferably post-recovery. [Para 22] [983-G-H; 984-A] 201 and Hari Ram v. State of Rajasthan & Ors. (2009) 13
SCC 211: 2009 (7) SCR 623 – relied on.
1.6. Once the contraband is recovered, then there are
other provisions like Section 57 which the empowered Sajan Abraham v. State of Kerala (2001) 6 SCC 692:
C C 2001 (1) Suppl. SCR 335 and Abdul Rashid Ibrahim Mansuri
officer is mandatorily required to comply with. That itself
to some extent would minimize the purpose and v. State of Gujarat (2000) 2 SCC 513: 2000 (1) SCR 542 –
effectiveness of Section 42 of the NDPS Act. It is to referred to.
provide fairness in the process of recovery and Case Law Reference:
investigation which is one of the basic features of our
criminal jurisprudence. It is a kind of prevention of false D D 2001 (1) Suppl. SCR 335 referred to Para 11
implication of innocent persons. The legislature in its
2004 (2) SCR 224 relied on Para 14
wisdom had made the provisions of Section 42 of NDPS
Act mandatory and not optional as stated by this Court 2009 (7) SCR 495 relied on Para 14
in the case of Karnail Singh. [Para 23] [984-B-C]
E E (2009) 14 SCC 201 relied on Para 16
1.7. The accused is therefore entitled to grant of relief.
2009 (7) SCR 623 relied on Para 17
The judgment of the High Court as well as the Trial Court
are accordingly set aside and the accused is acquitted 2009 (11) SCR 470 followed Para 19
of the offence under Section 15 of NDPS Act. [Para 24]
[984-D] 2000 (1) SCR 542 referred to Para 19
F F
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
1.8. The Director General of Police concerned of all
No. 2118 of 2008.
the States are directed to issue appropriate instructions
directing the investigating officers to duly comply with the From the Judgment & Order dated 27.3.2008 of the High
provisions of Section 42 of NDPS Act at the appropriate Court of Punjab & Haryana at Chandigarh in Criminal Appeal
stage to avoid such acquittals. Compliance to the G G
No. 802-SB of 1998.
provisions of Section 42 being mandatory, it is the
incumbent duty of every investigating officer to comply Shiv Kumar Suri, Suchismita Bardhan for the Appellant.
with the same in true substance and spirit in consonance
with the law stated by this Court in the case of Karnail Kamal Mohan Gupta, Mohd. Zahid Hussain for the
Singh. [Paras 25, 26] [984-E-F] H H Respondent.
The Judgment of the Court was delivered by A A as the remaining gunny bags weighed 39 kgs. and 900 grams
each and were sealed with the seal bearing impressions JN
SWATANTER KUMAR, J. 1. The present appeal is and NL, and thereafter were taken into possession vide
directed against the judgment dated 27th March, 2008 recovery memo Ext. PE. The seal NL was handed over to HC
pronounced by the High Court of Punjab and Haryana at Hoshiar Singh while seal JN was retained by the DSP himself.
Chandigarh in Criminal Appeal No. 802-SB of 1998. We may
notice the case of the prosecution and the facts which have B B After completing this process, a ruqa Ex. PF was sent to the
police station where the FIR being Ext. PF/1 was registered
given rise to the filing of the present criminal appeal. under Sections 15/16/61/85 of NDPS Act. The Investigating
Officer prepared a site plan Ext. PG. On return to the police
2. On 4th February, 1994, ASI Nand Lal along with HC
station, the case property was handed over to the MHC with
Hoshiar Singh, HC Suraj Bhan and other police officials were
its seals intact. After receiving the test report Ext. PH from the
present in village Jogewala, in connection with patrolling duty. C C
Forensic Science Laboratory, Haryana, Madhuban (Karnal) and
ASI Nand Lal, who was examined as PW 1, received secret
after completing all other formalities, the challan was filed. The
information against the accused that the accused was in the
challan in terms of Section 173 of the Code of Criminal
habit of selling chura post (poppy husk) in his house and if a
Procedure, 1973 (for short “Cr.PC”) was presented before the
raid is conducted upon the house of the accused, the accused
court of competent jurisdiction. The prosecution examined a
can be caught red-handed with the contraband. One Nacchatter D D number of witnesses including PW1 Nand Lal, PW2 Jagdish
Singh is stated to have been associated with the raiding party
Nagar, DSP and PW Nachhattar Singh. Affidavits of Nihan
which raided the house of the accused. However, this witness
Singh, Head Constable and Tejas Singh, Constable (Ext. PA
was declared hostile before the Court during his examination.
and PB respectively) were taken into evidence. The accused
On conducting a search, five bags were found lying concealed
took the plea that he had been falsely implicated in the case
under a heap of chaff in the courtyard of the house of the E E at the instance of Harnand Singh, Ex-Member of the Block
accused. On suspicion of having some intoxicant in his
Samiti of the area and examined four witnesses in support of
possession, the Investigating Officer served notice upon the
his case. The Trial Court vide its judgment of conviction dated
accused under Section 50 of the Narcotic Drugs and
4th July, 1998 held the accused guilty of an offence punishable
Psychotropic Substances Act, 1985 (for short ‘NDPS Act’)
under Section 15 of NDPS Act and after hearing the party on
giving him an offer to be searched before a Gazetted Officer
F F the quantum of sentence vide its order dated 6th July, 1998
or a Magistrate. Accused is stated to have responded to such
awarded 10 years’ rigorous imprisonment to the accused with
notice vide Ext. PC/1 where he expressed his desire to be
fine Rs. 1 lakh and in the event of default to undergo simple
searched before a Gazetted Officer of the police. Upon having
imprisonment for another two years. The legality and
known the desired choice of the accused, it is stated that PW1
correctness of the judgment and order of sentence was
had sent an application, Ext. PD, to the Deputy Superintendent
of Police, Dabwali, through Constable Amir Singh requesting G G challenged by the accused before the High Court.
him to reach the spot. Mr. Jagdish Nagar, DSP, reached the 3. The High Court vide its detailed judgment dated 27th
spot after about half an hour and upon his instruction the search March, 2008 declined to interfere with the judgment of the Trial
of the bags was conducted. From each gunny bag, 100 grams Court and while upholding the same, maintained the order of
of chura post was separated as sample. The samples as well sentence, giving rise to the filing of the present appeal.
H H
[SWATANTER KUMAR, J.]
4. The only contention raised before us on behalf of the A A recovered which were lying in the court-yard of the house
appellant is that the case of the prosecution must fail for total of the accused. Then, I served a notice Ex. PC on the
non-compliance of the statutory provisions of Section 42 of accused on the suspicion of his having possessed some
NDPS Act. These provisions are mandatory and in the present narcotic substance in these five gunny bags, offering him
case, there is admittedly no compliance of the said provisions, the search of the bags before any Gazetted Officer of
thus the accused is entitled to acquittal as the whole case of B B Police or a Magistrate. The accused as per his reply
the prosecution is vitiated in law. Ex.PC/1 desired the search of the gunny bags before any
Gazetted Officer of Police. Ex. PC and Ex. PC/1 were
5. To the contra, the contention on behalf of the State is signed by the accused and attested by PWs H.C. Suraj
that there is substantial compliance of the provisions of Section Bhan and Hoshiar Singh and Nachittar Singh independent
42 of NDPS Act and therefore, the concurrent judgments of witness. Then I sent a written application Ex.PD through
C C
conviction and order of sentence do not call for any interference. constable Amir Singh to DSP Dabwali requesting him to
reach on the spot. Thereafter, the DSP Dabwali reached
6. In order to examine the merit or otherwise of the above
at the spot after half an hour and then on his instructions,
contention, it is necessary for us to discuss the entire gamut of
I conducted the search of the five gunny bags in the
the prosecution evidence.
D presence of PWs. Poppy straw was found in it. 100 grams
D
7. At this stage, it will be useful to refer to the relevant churapost was separated as samples from each gunny
statement of ASI Nand Lal, PW1 who is stated to have bags. The remaining on weighment was found to be 39
received a secret information, proceeded to raid the house of kgs. 900 grams in each gunny bag. The samples and the
the accused and recovered the chura post as noticed above: gunny bags remaining churapost were sealed with the
seals NL and JN and were taken into possession vide
“On 04.02.1994, I was posted as Incharge of CIA Staff, E E recovery memo Ex. PE attested by DSP Jegdish Nagar,
Dabwali. On that day, I alongwith Hoshiar Singh H.C. Suraj Nichhatar Singh, Suraj Bhan H.C. Seal NL after use was
Bhan H.C. and other police officials was present at village handed over to Hoshiar Singh H.C., while the seal JN was
Jogewala in connection with patrolling and detection of retained by the DSP himself I sent ruqa Ex. PF to the
crimes. Then, I received a secret information that the Police-Station for registration of a case on which for-mail
accused present in the court is in the habit of selling F F FIR Ex.PF/1 was recorded by Shri Davinder Kumar ASI
churapost and if a raid is conducted at the once, churapost whose signatures Iidentify.”
could be recovered from him. On receipt of this information,
I formed a raiding party and when I reached near the school 8. It is clear from the statement of PW1 that he, upon
of village Panniwala Morika, Nicchattar Singh son of receiving the secret information, neither reduced the same in
Sunder Singh met me and he was joined in the raiding G G writing nor communicated to his senior officer about receiving
party and then the raiding party reached the house of the the secret information as required under Section 42 of NDPS
accused. The accused was found present in the court-yard Act.
of his house and at that time, he was sitting on a cot. Then,
9. In his cross-examination, he admitted that he had
I conducted the house search of the accused and on
received the secret information at about 11.30 a.m. at Village
search five bags lying under the heap of Turi were H H
Jogewala. He did not know from where the secret information A A purpose of the very raid would have been defeated.
was received. He was in a jeep. The distance between the However, he substantially complied the provisions of
house of the accused and the spot where he was at the time Section 42 of the Act, by recording the ruqa, embodying
of receiving the secret information was merely 6 kilometers, but the secret information therein, as also by sending the
he reached the house of the accused only at 2 p.m. He also message to the DSP, to come to the spot, as a result
admitted that the house of the accused was situated in the B B whereof, he came to the spot. Since, there was substantial
middle of the village in a busy locality, and yet he did not call compliance, with the provisions of Section 42 of the Act,
anybody from the neighbourhood at the time of effecting it could not be said that there was intentional and
recovery. deliberate non-compliance thereof strictly. On account of
this reason, the case of the prosecution cannot be thrown
10. According to the learned counsel appearing for the out. The principle of law, laid down in Sajan Abraha’s case
C C
State, there was substantial compliance inasmuch as after (supra), a case decided by three Judge Bench of the Apex
effecting the recovery he had sent a ruqa Ext. PF to his senior Court, is, thus, fully applicable to the facts of the present
officer, on the basis of which the FIR Ext. PF/1 was registered case. In this view of the matter, fully applicable to the facts
and thus, there was substantial compliance of the provisions of the present case. In this view of the matter, the
of Section 42 of NDPS Act. This aspect has also been submission of the Counsel for the appellant, in this regard,
considered by the High Court and while accepting the D D
does not appear to be correct, and stands rejected.”
contention of the State as to substantial compliance of the
provisions of Section 42 of NDPS Act, the High Court in the 11. We may notice that the High Court, while arriving at
judgment impugned herein noticed as under:- the above conclusion, appears to have relied upon the judgment
of this Court in the case of Sajan Abraham v. State of Kerala
“9-A. In the instant case too, a secret information, was E E [(2001) 6 SCC 692].
received by Nand Lal, ASI on 4.2.1994, when he alongwith
Hoshiar Singh, HC, Suraj Bhan and other police officials, 12. The High Court has proceeded apparently on the basis
was present in village Jogewala, in connection with patrol of substantial compliance of the provisions. The concept of
duty, and detection of crime. It means that Nand Lal, ASI, substantial compliance appears to have been construed on the
was in motion, at the time, when he received the secret F F basis that PW1 had sent a ruqa and had informed about the
information, against the accused. Since, the secret recovery effected on the basis of which the FIR was registered.
informer had informed Nand Lal, ASI that if a raid was All these are post-recovery steps taken by PW1.
conducted immediately, then a big haul of contraband,
could be recovered from the house of the accused, where 13. Now, the question that arises for consideration is as
he was present. It was his bounden duty, to immediately to at what stage and by what time the authorized officer should
G G comply with the requirements of Section 42 of the Act and
rush to the disclosed place, to detect the accused with
contraband. It was, in this view of the matter, that he had report the matter to his superior officer. For this purpose, we
no time to record the information, and send the same to must refer to Section 42 of the NDPS Act at his stage :
the Officer Superior, as had he done so, there would have “Section 42—Power of entry, search, seizure and arrest
been every possibility of the accuse absconding, and the without warrant or authorisation—(1) Any such officer
H H
(being an officer superior in rank to a peon, sepoy or A A forfeiture under Chapter VA of this Act; and
constable) of the departments of central excise, narcotics,
customs, revenue intelligence or any other department of (d) detain and search, and, if he thinks proper, arrest any
the Central Government including para-military forces or person whom he has reason to believe to have committed
armed forces as is empowered in this behalf by general any offence punishable under this Act:
or special order by the Central Government, or any such B B Provided that if such officer has reason to believe that a
officer (being an officer superior in rank to a peon, sepoy search warrant or authorisation cannot be obtained without
or constable) of the revenue, drugs control, excise, police affording opportunity for the concealment of evidence or
or any other department of a State Government as is facility for the escape of an offender, he may enter and
empowered in this behalf by general or special order of search such building, conveyance or enclosed place at any
the State Government, if he has reason to believe from C C time between sunset and sunrise after recording the
persons knowledge or information given by any person grounds of his belief.
and taken down in writing that any narcotic drug, or
psychotropic substance, or controlled substance in respect (2) Where an officer takes down any information in writing
of which an offence punishable under this Act has been under sub-section (1) or records grounds for his belief
committed or any document or other article which may D under the proviso thereto, he shall within seventy-two hours
D
furnish evidence of the commission of such offence or any send a copy thereof to his immediate official superior.”
illegally acquired property or any document or other article
which may furnish evidence of holding any illegally acquired 14. Section 42 can be divided into two different parts. First
property which is liable for seizure or freezing or forfeiture is the power of entry, search seizure and arrest without warrant
under Chapter VA of this Act is kept or concealed in any or authorisation as contemplated under sub-section (1) of the
E E said section. Second is reporting of the information reduced
building, conveyance or enclosed place, may between
sunrise and sunset,— to writing to a higher officer in consonance with sub-section (2)
of that section. Sub-section (2) of Section 42 had been a matter
(a) enter into and search any such building, conveyance or of judicial interpretation as well as of legislative concern in the
place; past. Sub-section (2) was amended by the Parliament vide Act
F F 9 of 2001 with effect from 2nd October, 2001. After amendment
(b) in case of resistance, break open any door and remove of this sub-section, the words ‘forthwith’ stood amended by the
any obstacle to such entry; words ‘within 72 hours’. In other words, whatever ambiguity or
(c) seize such drug or substance and all materials used in leverage was provided for under the unamended provision, was
the manufacture thereof and any other article and any clarified and resultantly, absolute certainty was brought in by
animal or conveyance which he has reason to believe to G G binding the officer concerned to send the intimation to the
be liable to confiscation under this Act and any document superior officers within 72 hours from the time of receipt of
or other article which he has reason to believe may furnish information. The amendment is suggestive of the legislative
evidence of the commission of any offence punishable intent that information must reach the superior officer not only
under this Act or furnish evidence of holding any illegally expeditiously or forthwith but definitely within the time
acquired property which is liable for seizure or freezing or H H contemplated under the amended sub-section (2) of Section
42. This, in our opinion, provides a greater certainty to the time A A in our considered opinion, would not arise.
in which the action should be taken as well as renders the
safeguards provided to an accused more meaningful. In the 10. It is also a well-settled principle of law that a substantive
present case, the information was received by the empowered provision unless specifically provided for or otherwise
officer on 4th February, 1994 when the unamended provision intended by Parliament should be held to have a
was in force. The law as it existed at the time of commission prospective operation. One of the facets of the rule of law
B B
of the offence would be the law which will govern the rights and is also that all statutes should be presumed to have a
obligations of the parties under the NDPS Act. In the case of prospective operation only.”
Basheer @ N.P. Basheer v. State of Kerala [(2004) 3 SCC
15. No law can be interpreted so as to frustrate the very
609] wherein this Court was concerned with the Amending Act
basic rule of law. It is a settled principle of interpretation of
9 of 2001 of the NDPS Act, the Court took the view that C C criminal jurisprudence that the provisions have to be strictly
application of the Amending Act, where the trial had been
construed and cannot be given a retrospective effect unless
concluded and appeal was pending on the date of its
legislative intent and expression is clear beyond ambiguity. The
commencement and where the accused had been tried and
amendments to criminal law would not intend that there should
convicted, would not apply. The contention that trials were not
be undue delay in disposal of criminal trials or there should be
held in accordance with law was not sustainable for the reason
D D retrial just because the law has changed. Such an approach
that there could be direct and deleterious consequences of
would be contrary to the doctrine of finality as well as avoidance
applying the amending provisions of the Act to trials which had
of delay in conclusion of criminal trial.
concluded in which appeals were filed prior to the date of
Amending Act coming into force. This would certainly defeat 16. Still, reference can be made to the judgment of this
the first object of avoiding delay in such trials. Another Bench Court in the case of Ravinder Singh v. State of Himachal
of this Court in the case of Jawahar Singh @ Bhagat Ji. v. E E
Pradesh [(2009) 14 SCC 201], wherein this Court was dealing
State of GNCT of Delhi [(2009) 6 SCC 490], while dealing with with the question as to what would be the law applicable for
the amendments of Section 21 of the NDPS Act, the Court took imposition of a sentence irrespective of when the trial was
the view that amendments made by Act 9 of 2001 could not concluded with reference to Article 21 of the Act and provision
be given retrospective effect as if it was so given, it would of the Punjab Excise Act, 1914 as applicable and amended
warrant a retrial which is not the object of the Act. The Court F F by H.P. Act 8 of 1995 where punishment was enhanced and
held as under : minimum sentenced was provided. The Court held that it is trite
law that the sentence imposable on the date of commission of
“9. It is now beyond any doubt or dispute that the quantum
the offence has to determine the sentence imposable on
of punishment to be inflicted on an accused upon recording
completion of trial’.
a judgment of conviction would be as per the law which G G
was prevailing at the relevant time. As on the date of 17. Even in the case of Hari Ram v. State of Rajasthan
commission of the offence and/or the date of conviction, & Ors. [(2009) 13 SCC 211], this Court stated with reference
there was no distinction between a small quantity and a to the provisions of the Juvenile Justice (Care and Protection
commercial quantity, question of infliction of a lesser of Children) Act, 2000 (as amended by Act of 2006) that the
sentence by reason of the provisions of the amending Act, H H relevant date for applicability of the Act so as the age of the
accused, who claims to be a child, is concerned, is the date of A A before proceeding to take action in terms of clauses (a)
occurrence and not the date of trial. to (d) of Section 42(1).
18. In the present case, the occurrence was of 4th February, (b) But if the information was received when the officer was
1994. The Trial of the accused concluded by judgment of not in the police station, but while he was on the move
conviction dated 4th July, 1998. Thus, it will be the unamended either on patrol duty or otherwise, either by mobile phone,
Section 42(2) of the NDPS Act that would govern the present B B or other means, and the information calls for immediate
case. The provisions of Section 42 are intended to provide action and any delay would have resulted in the goods or
protection as well as lay down a procedure which is mandatory evidence being removed or destroyed, it would not be
and should be followed positively by the Investigating Officer. feasible or practical to take down in writing the information
He is obliged to furnish the information to his superior officer given to him, in such a situation, he could take action as
forthwith. That obviously means without any delay. But there C C per clauses (a) to (d) of Section 42(1) and thereafter, as
could be cases where the Investigating Officer instantaneously, soon as it is practical, record the information in writing and
for special reasons to be explained in writing, is not able to forthwith inform the same to the official superior.
reduce the information into writing and send the said
(c) In other words, the compliance with the requirements
information to his superior officers but could do it later and
D of Sections 42(1) and 42(2) in regard to writing down the
preferably prior to recovery. Compliance of Section 42 is D
information received and sending a copy thereof to the
mandatory and there cannot be an escape from its strict
superior officer, should normally precede the entry, search
compliance.
and seizure by the officer. But in special circumstances
19. This question is no more res integra and stands fully involving emergent situations, the recording of the
answered by the Constitution Bench judgment of this Court in information in writing and sending a copy thereof to the
E E
Karnail Singh v. State of Haryana [(2009) 8 SCC 539]. The official superior may get postponed by a reasonable
Constitution Bench had the occasion to consider the conflict period, that is, after the search, entry and seizure. The
between the two judgments i.e. in the case of Abdul Rashid question is one of urgency and expediency.
Ibrahim Mansuri v. State of Gujarat [(2000) 2 SCC 513] and
(d) While total non-compliance with requirements of sub-
Sajan Abraham (supra) and held as under:-
F F sections (1) and (2) of Section 42 is impermissible,
“35. In conclusion, what is to be noticed is that Abdul delayed compliance with satisfactory explanation about the
Rashid did not require literal compliance with the delay will be acceptable compliance with Section 42. To
requirements of Sections 42(1) and 42(2) nor did Sajan illustrate, if any delay may result in the accused escaping
Abraham hold that the requirements of Sections 42(1) and or the goods or evidence being destroyed or removed, not
42(2) need not be fulfilled at all. The effect of the two G G recording in writing the information received, before
decisions was as follows: initiating action, or non-sending of a copy of such
information to the official superior forthwith, may not be
(a) The officer on receiving the information [of the nature
treated as violation of Section 42. But if the information
referred to in sub-section (1) of Section 42] from any
was received when the police officer was in the police
person had to record it in writing in the register concerned
station with sufficient time to take action, and if the police
and forthwith send a copy to his immediate official superior, H H
officer fails to record in writing the information received, A A of furnishing information to the superior officer should be
or fails to send a copy thereof, to the official superior, then forthwith or within a very short time thereafter and preferably
it will be a suspicious circumstance being a clear violation post-recovery.
of Section 42 of the Act. Similarly, where the police officer
23. Once the contraband is recovered, then there are other
does not record the information at all, and does not inform
provisions like Section 57 which the empowered officer is
the official superior at all, then also it will be a clear B B mandatorily required to comply with. That itself to some extent
violation of Section 42 of the Act. Whether there is
would minimize the purpose and effectiveness of Section 42
adequate or substantial compliance with Section 42 or not
of the NDPS Act. It is to provide fairness in the process of
is a question of fact to be decided in each case. The above
recovery and investigation which is one of the basic features
position got strengthened with the amendment to Section
of our criminal jurisprudence. It is a kind of prevention of false
42 by Act 9 of 2001.” C C implication of innocent persons. The legislature in its wisdom
20. Having referred to the above settled principle of law, had made the provisions of Section 42 of NDPS Act mandatory
we are unable to accept the contention raised on behalf of the and not optional as stated by this Court in the case of Karnail
State and have to grant our approval to the submission made Singh (supra).
on behalf of the appellant.
D 24. Thus, the present appeal merits grant of relief to the
D
21. As per the statement of PW1, no effort was made by accused. We accordingly set aside the judgment of the High
him to reduce the information into writing and inform his higher Court as well as the Trial Court and acquit the accused of an
authorities instantaneously or even after a reasonable delay offence under Section 15 of NDPS Act. We direct the accused
which has to be explained with reasons in writing. On the to be set at liberty forthwith, if not required in any other case.
contrary, in the present case, the Investigating Officer PW 1 had
E E 25. Before we part with this file, we consider it the duty of
more than sufficient time at his disposal to comply with the
the Court to direct the Director General of Police concerned of
provisions of Section 42. Admittedly, he had received the secret
all the States to issue appropriate instructions directing the
information at 11.30 a.m., but he reached the house of the
investigating officers to duly comply with the provisions of
accused at 2 p.m. even when the distance was only 6
Section 42 of NDPS Act at the appropriate stage to avoid such
kilometers away and he was in a jeep. There is not an iota of
F F acquittals. Compliance to the provisions of Section 42 being
evidence, either in the statement of PW 1 or in any other
mandatory, it is the incumbent duty of every investigating officer
documentary form, to show what the Investigating Officer was
to comply with the same in true substance and spirit in
doing for these two hours and what prevented him from
consonance with the law stated by this Court in the case of
complying with the provisions of Section 42 of NDPS Act.
Karnail Singh (supra).
22. There is patent illegality in the case of the prosecution G G 26. The Registry shall send a copy of this judgment to all
and such illegality is incurable. This is a case of total non-
the Director Generals of Police of the States for immediate
compliance, thus the question of substantial compliance would
compliance.
not even arise for consideration of the Court in the present case.
The twin purpose of the provisions of Section 42 which can 27. The appeal is accordingly allowed.
broadly be stated are that : (a) it is a mandatory provision which
H H B.B.B. Appeal allowed.
ought to be construed and complied strictly; and (b) compliance
JEEWAN & ORS. A A Evidence:

v.
STATE OF UTTARAKHAND Discrepancies in inquest report – Held: Discrepancy has
(Criminal Appeal No. 1275 of 2009) to be material and seriously affecting the prosecution case –
Every minor and immaterial discrepancy would not prove fatal
DECEMBER 13, 2012 to the prosecution case – Inquest Report or the post mortem
B B
report cannot be termed to be basic evidence or substantive
evidence and discrepancies occurring therein cannot be
termed to be fatal nor even a suspicious circumstance which
Appeal: would warrant benefit to the accused and result in dismissal
Criminal appeal filed by accused before High Court – of the case of prosecution – Court has to examine entire case
C C and discuss prosecution evidence in its entirety to examine
Proper and fair hearing to appellants – Held: The appeal was
filed by accused through advocates, who appeared and took the real impact of a material contradiction upon the
several adjournments – Subsequently, another counsel prosecution case – There is sufficient evidence in the instant
appeared for the appellants and stated that he had no case to show involvement of accused persons in commission
instructions in the matter – High Court then heard the appeal of the crime.
D D
with the assistance of amicus curiae and the State counsel – The appellants were prosecuted for committing
Thus, High Court took every precaution and ensured proper murder of the brother of PW-1. The prosecution case was
hearing to the appellants – Penal Code, 1860 – s.302/34. that on 12-3-1991 at about 10 p.m., the complainant (PW-
Penal Code, 1860: 1) and the deceased were returning home after attending
E E a marriage. When they had gone, about 100 steps away
s. 302 r/w s.34 – Murder – Three accused – Two accused from the venue of the marriage, they met the accused
caught hold of the victim and the third stabbed him several persons, namely, A-1, A-2 and A-3. A-1 was carrying a
times causing his death – Conviction of all the three and knife while A-2 and A-3 were armed with sticks (dandas).
sentence of imprisonment for life, upheld by High Court – A-2 and A-3 caught hold of the deceased while A-1 struck
Held: The accused had participated with the common F F several blows with knife on his chest and abdomen. PW2
intention in committing the murder of the deceased – The and PW3, who after attending the marriage were taking
cumulative effect of the oral and documentary evidence was rest in the nearby house, upon hearing the cries, reached
that all the three accused had been found guilty of offence the place of occurrence, whereupon the accused ran
punishable u/s. 302 read with s. 34 – In the facts and away. The victim was taken to the hospital where he
circumstances of the case, there is no reason to interfere with G succumbed to his injuries. The trial court convicted all
G
the concurrent finding of conviction and order of sentence the three accused u/s 302 read with s. 34 IPC and
passed by courts below – There is some delay in lodging of sentenced them to imprisonment for life. The High Court
the FIR, but the same stands fully explained – Motive – upheld the conviction and the sentence.
Evidence – Constitution of India, 1950 – Art. 136 – Delay in
In the instant appeal, apart from raising a plea that
lodging FIR.
985 H H the accused persons had not been given proper hearing
JEEWAN & ORS. v. STATE OF UTTARAKHAND 987 988 SUPREME COURT REPORTS [2012] 11 S.C.R.
before the High Court and their right to a fair defence A A 2.2. According to PW2, PW-3 and he were sitting in
stood denied, it was contended that the presence of PW2 the house of their acquaintance when they heard the
and PW3 at the place of occurrence was very doubtful; noise. They thereafter reached the place of occurrence.
that there was inordinate delay in lodging the FIR; and In the torch light, they claimed to have seen the accused
that the Inquest Report was in contradiction with the persons committing the crime including the fact that A-1
medical evidence and the ocular evidence of the B B was carrying knife and he stabbed the deceased.
prosecution and there being material contradictions, the According to him, when they challenged the accused
appellants were entitled to acquittal. persons, they ran away. On similar lines is the statement
of PW3. [para 12] [998-C-D]
Dismissing the appeal, the Court
HELD: 1. It cannot be said that the appellants were 2.3. It is an undisputed case that there was a marriage
C C and all the three witnesses had gone to attend the
denied proper and fair hearing before the High Court. The
accused had filed appeal before the High Court through marriage. The presence of PW2 and PW3 at the place in
advocates, who appeared and took several the nearby house can hardly be doubtful. PW1 would be
adjournments. Thereafter they did not appear. Then accompanying the deceased, as he was his brother.
another advocate appearing for appellants stated that he Thus it cannot be said that the presence of these
D D witnesses at the place of occurrence was doubtful. There
had no instructions in the matter. The High Court then
heard the appeal with the assistance of amicus curiae is no discrepancy of any material consequence in the
appointed by it and the State counsel. Thus, the High statements of PWs 1, PWs 2 and 3. [para 13 and 15] [998-
Court took every precaution and ensured proper hearing E-G; 999-F]
to the appellants before it passed the impugned 2.4. As regards the discrepancy that in the inquest
judgment. [para 8] [996-E-H; 997-D] E E
report, Ext. A6, the name of A-2 has been recorded,
Dharam Pal v. State of U.P. 2008 (1) SCR 65 = AIR 2008 stating that he committed the murder of the deceased by
SC 920 – referred to. stabbing him, while according to the witnesses giving the
ocular version, it was A-1 who had given stab injuries to
2.1. As regards merits of the case, according to the
the deceased, it is significant to note that the expression
prosecution, the deceased was murdered by three F F
used in the inquest report is Malum. This could be a
accused to which his brother (PW1), PW2 and PW3 were
plausible error that crept in Ext. A6. It records the name
eye-witnesses. PW1 has fully supported the case of the
of the witnesses, name of the Panchas and it appears
prosecution and has stated that A-1 was carrying a knife
that the names of the other accused have not been
and A-2 and A-3 were carrying Dandas. There was a
stated. The object of the inquest report was more towards
heated exchange of words between them and thereafter G G recording the status of the body and articles thereon and
A-2 caught hold of the deceased while A-1 stabbed three
the situation existing at the spot. This error cannot
to four times in his stomach. On the alarm raised by PW1,
frustrate the case of the prosecution which stands fully
PW 2 and PW 3 reached to the place of occurrence
established by the statements of PW1, PW2 and PW3.
whereupon the accused persons ran away. [para 10] [997-
Further, PW1 is even a Panch witness to Ext.A6 which
F-H; 998-A] H H clearly establishes his presence at the place of
occurrence. The medical report and the injuries recorded A A 2.6. As regards, the delay in institution of the FIR,
and the statement of the doctor (PW7) fully support the admittedly, the occurrence took place at about 10 p.m. on
case of the prosecution that the deceased was stabbed 12-3-1991 and the FIR was lodged on 13-3-1991 at about
three to four times by the accused persons. [para 18-20] 8.45 a.m. There is some delay in lodging of the FIR, but
[1000-D-H; 1001-A, C] the same stands fully explained by the statement of the
2.5. Discrepancy has to be material and seriously B B witnesses and the conduct of such witnesses. This has
affecting the case of the prosecution. Every minor and been well discussed by the trial court in its judgment.
immaterial discrepancy would not prove fatal to the case Wherever the delay is properly explained by the
of the prosecution. The court has to keep in mind that the prosecution or the witnesses, the court would be
evidence is recorded after years together and to expect reluctant to grant benefit of acquittal to the accused only
the witnesses to give a minute to minute account of the C C on that ground. [para 27-28] [1006-B-C-E; 1007-D]
occurrence with perfection and exactitude would not be Nagesh v. State of Karnataka (2012) 6 SCC 477; Bhajan
a just and fair rule of evidence. Even an omission or Singh @ Harbhajan Singh & Ors. v. State of Haryana 2011
discrepancy in the inquest report may not be fatal to the (7) SCR 1 = (2011) 7 SCC 421; and Jitender Kumar v. State
case of the prosecution. Besides, the Inquest Report or of Haryana (2012) 6 SCC 204 – referred to.
the post mortem report cannot be termed to be basic D D 2.7. Motive is not an absolute essential feature of
evidence or substantive evidence and discrepancies
commission of a crime. According to PW1, there had been
occurring therein cannot be termed to be fatal nor even
scuffle between the parties few days prior to the date of
a suspicious circumstance which would warrant a
occurrence, when the accused persons were playing
benefit to the accused and result in dismissal of the case
cards along with the deceased and gambling which could
of the prosecution. The court has to examine the entire E E be settled only by the intervention of the village-headman
case and discuss the prosecution evidence in its entirety
and that they had threatened the deceased and stated that
to examine the real impact of a material contradiction
they would see him later. This may or may not be a motive
upon the case of the prosecution. Trustworthy evidence
enough to kill somebody, but the fact remains that prior
cannot be rejected on fanciful ground or treated to be in
to the date of occurrence, there was a scuffle between
the nature of conjectures. In the instant case, the
discrepancies pointed out by the appellants are neither
F F the parties where the accused persons had threatened
the deceased. [para 30] [1009-C-E]
material nor do they affect the case of the prosecution
adversely. There is sufficient evidence in the instant case 2.8. The accused had participated with the common
to show the involvement of the accused persons in the intention in committing the murder of the deceased.
commission of the crime. [para 21, 25-26] [1001-E-G; While A-2 caught hold of the deceased A-1 had stabbed
1005-F-G; 1006-A-B] G G him and A-3 also participated in the commission of the
crime. The cumulative effect of the oral and documentary
Brahm Swaroop and Anr. v. State of Uttar Pradesh 2010
evidence was that all the three accused had been found
(15) SCR 1 = (2011) 6 SCC 288; Shyamal Ghosh v. State
guilty of offence punishable u/s. 302 read with s. 34 IPC.
of West Bengal (2012) 7 SCC 646; Munshi Prasad & Ors. v.
[para 20] [1001-C-D]
State of Bihar 2001 (4) Suppl. SCR 25 = (2002) 1 SCC 351
– referred to. H H
2.9. Unless finding recorded by the High Court is so A A The Judgment of the Court was delivered by
outweighed so outrageously defies logic as to suffer from
the vice of irrationality, this Court would not interfere with SWATANTER KUMAR, J. 1. The present appeal is
the judgment. In the facts and circumstances of the case, directed against the judgment of the High Court of Uttarakhand
there is no reason to interfere with the concurrent finding at Nainital dated 14th October, 2008 vide which the High Court
of conviction and order of sentence passed by the courts B confirmed the judgment of the trial court and dismissed the
B
below. [para 24 and 31] [1005-B; 1009-E] appeal preferred by the accused against their conviction and
order of sentence.
State of U.P. v. Naresh and Ors. 2011 (4) SCR 1176 =
(2011) 4 SCC 324; and Bhola @ Paras Ram v. State of H.P. 2. The conviction of the accused is based upon the version
2009 (2) SCR 750 = (2009) 11 SCC 460 – referred to. of the prosecution that on 12th March, 1991 at about 10 p.m.,
C C complainant Bhupal Chandra, who later came to be examined
Case Law Reference: as PW1, along with his brother Devendra Lal after attending
the marriage ceremony of one Pooran Chandra in Village
2008 (1) SCR 65 referred to para 8
Dhapla within the limits of Police Station Kaladhungi, District
2010 (15) SCR 1 referred to para 21 Nainital, were returning home. On their way, they found the
D D accused Jeewan Ram, Dalip and Kamal, all residents of their
(2012) 7 SCC 646 referred to para 22 village, standing there. Jeewan was carrying a knife while
2011 (4) SCR 1176 referred to para 24 Kamal and Dalip were armed with sticks (danda). Accused
Kamal and Dalip caught hold of Devendra while Jeewan struck
2009 (2) SCR 750 referred to para 24 several blows with knife on his chest and abdomen. PW1 was
2001 (4) Suppl. SCR 25 referred to para 25 E E carrying torch and saw the occurrence in that light. Two more
persons, Rajendra Singh, PW2 and Prem Ram, PW3, who
(2012) 6 SCC 477 referred to para 28 after attending the marriage were taking rest in the nearby
house of Shyam Lal, upon hearing the alarm raised by
Devendra Lal, reached the place of occurrence. In the light of
(2012) 6 SCC 204 referred to para 29 F F the torches they were carrying, they witnessed the accused com
itting the crime. Upon hearing the alarm raised by Devendra, th
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal se witnesses saw the accused persons running away, however,
No. 1275 of 2009. they did not chase them out of fear.
From the Judgment & Order dated 14.10.2008 of the High 3. Devendra Lal, was immediately taken to a hospital in
Court of Uttarakhand at Naintial in Criminal Appeal No. 1392 G G Haldwani where he succumbed to his injuries. At about 8.45
of 2001 (Old No. 300 of 1994) a.m., on 13th March, 1991 Bhupal Chandra, PW1, lodged the
First Information Report (for short, the ‘FIR’) against the three
Binu Tamta for the Appellants.
accused persons at Police Station Kaladhungi and a crime
Rahul Verma, Jatinder Kumar Bhatia for the Respondent. case No. 68 of 1991 was accordingly registered under Section
H H
302 of the Indian Penal Code (for short, the ‘IPC’) against all A A abdomen. Loops of intestine coming out.
the three accused persons. In the First Information Report, Ext.
A1, the complainant stated that the motive for commission of (v) P.W. 3 cm X 1 ½ cm X cavity deep about 3 cm from
crime by the accused was previous enmity between the parties. left nipple underneath the injury. Left lung is cut.
According to him, during Deepawali festival, the accused
(vi) I.W. 4 cm X 2 cm X muscle deep on medial side of
persons along with Devendra Lal were playing cards and B B right knee about 2 ½ cm from upper border of patella.
gambling, when they picked up a quarrel and there was a scuffle
between the parties. The scuffle did not aggravate into any (vii) I.W. 3 cm X 1½ cm X muscle deep, about 2 cm lateral
serious situation because of intervention by Sabhapati, the to left ant sup iliac spine.”
head-man of the village. Though, he got the matter
compromised, the three accused continued to harbour enmity C C 5. PW9, Sub Inspector Ram Baran Ram, interrogated the
and even threatened Devendra Lal to see him later. witnesses, inspected the torches of the complainant and
witnesses, prepared memorandums, Ext. A2 to A4, the site
4. After Devendra Lal succumbed to his injuries in the plan of the place of occurrence, Ext. A10, arrested the accused
hospital, a report was sent to the police. Sub Inspector Daya persons on 15th March, 1991 and recovered the knife used in
Ram Singh, PW8 came to the civil hospital, Haldwani, took up the crime upon the statement of Jeewan vide memorandum Ext.
the charge of the dead body and prepared the inquest report, D D
A-12. The Report was filed in the court of competent jurisdiction.
Ext. A6, whereafter the body was handed over to Dr. T.C. Pant, The accused persons were committed to the court of III
PW7 with a request to perform post-mortem upon the body of Additional Sessions Judge, Nainital and were tried under
the deceased. The doctor performed the post-mortem and Section 302 IPC read with Section 34 IPC, the offence with
prepared a report, Ext. A7, in which he noticed the injuries upon which they were charged. The learned trial court vide its
the body of the deceased as well as the cause of death, which E E judgment dated 25th February, 1994 formed the view that the
reads as under:- prosecution had been able to prove its case beyond reasonable
doubt and therefore convicted the accused persons of
“(i) P.W. 1.2 cm X ½ cm on front of sterum, 7 cm medial
committing an offence under Section 302 read with Section 34
left nipple. On opening the wound it is cavity deep piercing
IPC and awarded them the following sentence :-
the sterum. F F
“On the basis of the above evidence and circumstances, I
(ii) P.W. 8 cm X 3 cm X cavity deep, on right side of chest,
arrive at the conclusion that the prosecution has succeeded
3 cms towards right nipple. On opening the wond right lobe
in proving the charges levelled by them. Thus, I find the
of liver is cut.
accused persons Jeevan, Kamal and Dalip guilty for the
(iii) P.W. 15 cm X 5 cm X cavity deep. Medial end of G G offence of murder of Devender on dated 12.03.1991 at
wound touching 6th thoracic spine extending to right side 10.00 p.m. in village Dhapla, Police Station Kaladungi.
of back of chest. Right lung beneath the injury is cut. Sd/-
(Bijender Singh)
(iv) Punctured wound 4 cm x 2 cm x cavity deep, 3 cm Third Addl. Sessions Judge,
above from the left ant sup iliac spine on left lat side of H Nainital, Camp at Haldwani
H
Dated: 25.02.1994 A A where, obviously, a large number of persons must
be present and non-production of any such person
ORDER from the marriage party raises doubt towards the
case of prosecution.
The accused persons Jeevan, Kamal and Dalip are
found guilty for the offence under section 302 read with (b) there is inordinate delay in lodging the FIR. The
section 34 I.P.C. They are on bail. Their Personal Bonds B B
occurrence took place at about 10.00 p.m. on 12th
and Bail Bonds are cancelled and the sureties are March, 1991 while the First Information Report
discharged. Ext.A1 was lodged at about 8.45 a.m. on 13th
March, 1991. Thus, the accused are entitled to the
They be taken in custody for undergoing sentence
benefit of doubt.
to awarded after hearing them on the quantum of C C
sentence. (c) The Inquest Report is in contradiction with the
Sd/- medical evidence and the ocular evidence of the
(Bijender Singh) prosecution and there being material
Third Addl. Sessions Judge, contradictions, the appellant is entitled to the benefit
Nainital, Camp at Haldwani D D of acquittal.
Dated: 25.02.1994 (d) The accused persons had not been given proper
hearing before the High Court and their right to a
I have heard the accused persons Jeevan, Kamal
fair defence stood denied.
and Dalip and their learned counsel Shri Shyam Singh
Mehra, Advocate on the quantum of sentence, who has E E 8. Amongst the above contentions, we may deal with the
stated that the accused persons are innocent, but I have last argument raised on behalf of the appellant at the threshold.
convicted them after analyzing the evidence.” There is no merit in this submission that the appellant was
denied proper and fair hearing before the High Court. The
6. Aggrieved from the judgment of conviction and order of
accused had filed an appeal before the High Court through
sentence, the accused persons preferred a common appeal
F F private counsel Mr. V.S. Pal and Mr. M.S. Pal, advocates.
before the High Court which came to be dismissed vide
These advocates appeared and took several adjournments
judgment of the High Court dated 14th October, 2008 giving
before the High Court. Thereafter they did not appear in that
rise to the present appeal.
court. Then, Advocate Shri D.N. Sharma appearing for
7. It is contended on behalf of the appellants/accused that appellants stated that he had no instructions in the matter. The
: G G High Court having been left with no alternative but to proceed
with the matter and keeping in view the judgment of this Court
(a) the presence of PW2 and PW3 at the place of in the case of Dharam Pal v. State of U.P. [AIR 2008 SC 920],
occurrence is very doubtful on the one hand, while heard the appeal with the assistance of amicus curiae
on the other, as per the case of prosecution, the appointed by the court. Having heard both the amicus and the
incident occurred near the place of marriage H H State counsel, the Court then decided the appeal. The appeal
was decided by the court in accordance with law. These facts A A stomach of Devendra. On seeing this, PW1 raised an alarm
have also been recorded by the High Court in its judgment and then witnesses Rajendra Singh and Prem Ram came to
under appeal. In the grounds of appeal raised by the appellant, the place of occurrence. Upon their coming, the accused
there is no challenge to these facts. Thus, in view of the persons ran away.
undisputed facts, there is no occasion for this Court to return a
finding that the appellant had no proper opportunity of hearing B 11. The deceased was taken to the hospital where he
B
before the High Court. The contention that the amicus curiae collapsed. In his cross-examination, PW1 also stated that crime
did not raise all the relevant contentions before the High Court scene was about 100 steps away from the venue of the
is without any substance. It is not for the Court to require a marriage of Pooran Chandra and there was no light in the
counsel, including Amicus Curiae, to raise a submission, the passage.
submission may vary from counsel to counsel. The duty of the C C 12. According to PW2, Rajendra Singh, they were sitting
court was only to ensure that the accused was not held guilty
in the house of Shyam Lal and talking when they heard the
without affording him an opportunity of hearing in accordance
noise coming from the hut of Nathu Ram. PW2 and PW3
with law. If the counsel appearing for the appellants pleaded
thereafter reached the place of occurrence. In the torch light, they
no instructions, no fault of procedural or substantial violation
claimed to have seen the accused persons committing the
could be attributed to the court. The blame for such attitude D D crime including the fact that Jeewan was carrying knife and that
would lie on none else but the appellants or the persons
Jeewan stabbed the deceased. According to him, when they
pursuing appeal on their behalf. The High Court took every
challenged the accused persons, the accused persons ran
precaution and ensured proper hearing to the appellants before
away. On similar lines is the statement of PW3.
it passed the impugned judgment. Thus, we have no hesitation
in rejecting this contention. 13. The first question that arises for consideration is
E E
whether the presence of these three witnesses in and around
9. The remaining three contentions raised on behalf of the
the place of occurrence is so very doubtful that their statement
appellant can be discussed together in order to avoid repetitive
should be disbelieved. The answer to this question has to be
discussion, as they are inter-linked with appreciation of
in the negative. It is an undisputed case before us that there
evidence.
was a marriage in the house of Pooran Chandra and all the
F F three witnesses had gone to attend the marriage. PW1 was
10. According to the prosecution, the deceased Devendra
was murdered by three accused to which his brother Bhupal accompanying the deceased. When they were returning from
Chandra, PW1, Rajendra Singh, PW2 and Prem Ram, PW3 the marriage, the incident occurred near the place of Nathu
were eye-witnesses. They were coming from the marriage and Ram. It is not unbelievable that village persons would attend a
in torch light they saw the accused persons committing the marriage and sit down at somebody’s place to chat. Thus, the
G G presence of PW2 and PW3 at the place of Shyam Lal can hardly
crime. PW1 has fully supported the case of the prosecution and
has stated that Jeewan was carrying a knife and Kamal and be doubtful. PW1 would be accompanying the deceased, as
Dalip were carrying Dandas. There was a heated exchange of he was his brother. We are unable to see any merit in the
words between them and thereafter Kamal caught hold of contention and the reasons for which the court can come to the
Devendra while Jeewan stabbed three to four times in the conclusion that the presence of these witnesses at the place
H H of occurrence was doubtful.
14. Heavy reliance was placed upon a discrepancy A A application of rule of evidence, keeping in view the facts and
appearing in the statement of PW1 and PW2. PW1 had stated circumstances of the case.
as follows:-
17. It is but natural that it would take a little time for the
“....Devendra was caught by Kamal and Devendra and offender to stab a person three to four times. Natural conduct
Jeevan stabbed three to four times in the stomach of of PW1 would be to raise alarm, which he did. Immediately
B B
Devendra. I raised alarm and then witnesses Prem Ram then, PW2 and PW3 came and saw the deceased being
and Rajendra Singh came there. Accused persons ran stabbed. They might not have seen all the stabbings, but even
away when they were challenged.” last stabbing by Jeewan could be viewed by them as they were
carrying torches and had seen the accused persons. They not
While PW2 stated as follows:- only saw the occurrence, but PW2 and PW3 also challenged
C C the accused persons upon which they ran away. Thus, PW2 and
“...Right then we heard the noise coming from the hut of
PW3 had sufficient time to see, if not the entire occurrence, at
Nathu Ram and then I and Prem Singh reached at the crime
least a part thereof as well as the participation of the accused
scene. We were carrying torch and we saw in its light that
persons in committing the murder of the deceased.
Jeevan was carrying knife and Kamal and Dalip were
carrying Danda and they were attacking with them on D D 18. Another discrepancy that is sought to be highlighted
Devendra. Jeevan stabbed him and Kamal and Dilip on behalf of the appellant is that in the inquest report, Ext. A6,
caught his hold. When we challenged them, accused the name of Kamal has been recorded, stating that he
persons ran away. Devendra fell down on the surface.” committed the murder of the deceased by stabbing him. While
according to the witnesses giving the ocular version, it was
15. The contention is that PW2 and PW3 never saw the
occurrence as according to PW1, it was after Jeewan had E E Jeewan who had given stab injuries to the deceased. It is to
be noticed that Ext. A6 is an inquest report prepared by S.I.
stabbed the deceased three-four times in the stomach that he
Daya Ram Singh in which various factors were recorded and
raised alarm. While according to PW2, in the torch light they
then it was an impression that was formed by the person
had seen Jeewan stabbing the deceased. This cannot be called
preparing it. The expression used in Ext. A6 is Malum. This
a discrepancy of any material consequence. Firstly, PW1 had
categorically stated that he had raised the alarm upon which F F could be a plausible error that crept in Ext. A6. It records the
name of the witnesses, name of the Panchas and it appears
Prem Ram and Rajendra Singh reached at the spot. Secondly,
that names of the other accused have not been stated. The
PW2 and PW3 were in the house of Shyam Lal which was very
object of the inquest report was more towards recording the
close by. Listening to the hue and cry, they had come to the
status of the body, the articles on the body of the deceased and
house of Nathu Ram and in the torch light had seen Jeewan
the situation existing at the spot. This error cannot frustrate the
stabbing and Kamal and Dalip holding the deceased. G G
case of the prosecution which stands fully established by the
16. The court cannot lose sight of the fact that the statement statements of PW1, PW2 and PW3.
of these witnesses had been recorded more than two years
19. At this stage, it can be very usefully noticed that PW1
subsequent to the date of occurrence. To expect the witnesses
is even a Panch witness to Ext.A6 which clearly establishes his
to depose with arithmetical exactitude would not be proper
H H presence at the place of occurrence. The medical report and
the injuries afore-recorded and the statement of PW7, Dr. T.C. A A in the nature of conjectures. In this regard, reference can be
Pant fully support the case of the prosecution. In the post- made to the case of Brahm Swaroop and Anr. v. State of Uttar
mortem report, he noticed as many as five punctured wounds Pradesh [(2011) 6 SCC 288], where the Court held as under:-
i.e. on the left nipple, towards right nipple on the right side of
the chest cutting right lobe of the liver, punctured wound touching “10. Omissions in the inquest report are not sufficient to
6th thoracic spine extending to right side of back of chest, B put the prosecution out of court. The basic purpose of
B
punctured wound cavity deep anterior superior illiac spine on holding an inquest is to report regarding the apparent
the left lateral side of abdomen and punctured wound cavity cause of death, namely, whether it is suicidal, homicidal,
deep underneath the first injury. Besides this, two more incised accidental or by some machinery, etc. It is, therefore, not
wounds were noticed at the right knee and the spine region. necessary to enter all the details of the overt acts in the
inquest report. Evidence of eyewitnesses cannot be
C C
20. This medical evidence clearly supports the case of the discarded if their names do not figure in the inquest report
prosecution that the deceased was stabbed three to four times prepared at the earliest point of time. The inquest report
by the accused persons. They had participated with the cannot be treated as substantive evidence but may be
common intention in committing the murder of the deceased. utilised for contradicting the witnesses of inquest. (See
While Kamal caught hold of the deceased Jeewan had stabbed Pedda Narayana v. State of A.P., Khujji v. State of M.P.,
him and Dalip also participated in the commission of the crime. D D George v. State of Kerala, Sk. Ayub v. State of
The cumulative effect of the oral and documentary evidence was Maharashtra4, Suresh Rai v. State of Bihar, Amar Singh
that all the three accused had been found guilty of offence under v. Balwinder Singh6, Radha Mohan Singh v. State of
Section 302 read with Section 34 IPC and punished with U.P.7 and Aqeel Ahmad v. State of U.P.8)
imprisonment for life.
E E 11. In Radha Mohan Singh, a three-Judge Bench of this
21. Now, let us examine the law in relation to Court held: (SCC p. 460, para 11)
discrepancies. Discrepancy has to be material and seriously
affecting the case of the prosecution. Every minor and “11. … No argument on the basis of an alleged
immaterial discrepancy would not prove fatal to the case of the discrepancy, overwriting, omission or contradiction in the
prosecution. The Court has to keep in mind that evidence is inquest report can be entertained unless the attention of
F F
recorded after years together and to expect the witnesses to the author thereof is drawn to the said fact and he is given
give a minute to minute account of the occurrence with an opportunity to explain when he is examined as a
perfection and exactitude would not be a just and fair rule of witness in court.”
evidence. The law in this regard is well settled. Even an
(emphasis added)
omission or discrepancy in the inquest report may not be fatal G G
to the case of the prosecution. The Court would have to 12. Even where the attention of the author of the inquest
examine the entire case and discuss the prosecution evidence is drawn to the alleged discrepancy, overwriting, omission
in its entirety to examine the real impact of a material or contradiction in the inquest report and the author in his
contradiction upon the case of the prosecution. Trustworthy deposition has also admitted that through a mistake he
evidence cannot be rejected on fanciful ground or treated to be omitted to mention the crime number in the inquest report,
H H
this Court has held that just because the author of the A A sending the gunny bags to the FSL cannot be said to be
report had not been diligent did not mean that reliable and fatal to the case of the prosecution in the circumstances
clinching evidence adduced by the eyewitnesses should of the present case. Of course, it would certainly have been
be discarded by the Court. [Vide Krishna Pal (Dr.) v. State better for the prosecution case if such steps were taken
of U.P.] by the investigating officer.
B B
13. In view of the law referred to hereinabove it cannot be ***** ***** ******
held that any omission or discrepancy in the inquest is fatal
to the prosecution’s case and such omissions would 68. From the above discussion, it precipitates that the
necessarily lead to the inference that FIR is ante-timed. discrepancies or the omissions have to be material ones
Shri N.K. Sharma, Sub-Inspector (PW 7), had denied the and then alone, they may amount to contradiction of some
suggestion made by the defence that till the time of C C serious consequence. Every omission cannot take the
preparing the report the names of the accused persons place of a contradiction in law and therefore, be the
were not available. He further stated that the column for foundation for doubting the case of the prosecution. Minor
filling up the nature of weapons used in the crime was left contradictions, inconsistencies or embellishments of trivial
open as it could be ascertained only by the doctor what nature which do not affect the core of the prosecution case
weapons had been used in the crime. Thus, the D D should not be taken to be a ground to reject the
submissions made in this regard are preposterous.” prosecution evidence in its entirety. It is only when such
omissions amount to a contradiction creating a serious
22. Similarly, reference can also be made to the case of doubt about the truthfulness or creditworthiness of the
Shyamal Ghosh v. State of West Bengal [(2012) 7 SCC 646], witness and other witnesses also make material
where the Court dealing with discrepancies in the investigation E E improvements or contradictions before the court in order
and non-obtaining of FSL and their effect on the case of the to render the evidence unacceptable, that the courts may
prosecution held as under:- not be in a position to safely rely upon such evidence.
Serious contradictions and omissions which materially
“58. Of course, there are certain discrepancies in the affect the case of the prosecution have to be understood
investigation inasmuch as the investigating officer failed in clear contradistinction to mere marginal variations in the
to send the bloodstained gunny bags and other recovered F F
statement of the witnesses. The prior may have effect in
weapons to the FSL, to take photographs of the shops in law upon the evidentiary value of the prosecution case;
question, prepare the site plan thereof, etc. Every however, the latter would not adversely affect the case of
discrepancy in investigation does not weigh with the court the prosecution.”
to an extent that it necessarily results in acquittal of the
accused. These are the discrepancies/lapses of G G 23. This Court has also expressed the view that it is a fair
immaterial consequence. In fact, there is no serious and settled position of law that even if there are some
dispute in the present case to the fact that the deceased omissions, contradictions or discrepancies, the entire evidence
had constructed shops on his own land. These shops were cannot be discarded. After exercising care and caution and
not the site of occurrence, but merely constituted a sifting the evidence to separate the truth from untruth,
relatable fact. Non-preparation of the site plan or not H H exaggeration, embellishments and improvements, the Court can
come to the conclusion as to whether the residual evidence is A A are neither material nor do they affect the case of the
sufficient to convict the accused. prosecution adversely. The Court has to examine the entire
evidence as a whole and not in parts so as not to frustrate the
24. Still, in some cases, the Court took the view that unless entire eye witness version and the medical evidence. There is
finding recorded by the High Court is so outweighed or such sufficient evidence in the present case to show the involvement
finding so outrageously defies logic so as to suffer from the vice B B of the accused persons in the commission of the crime.
of irrationality, this Court would not interfere with the judgment.
A mere discrepancy simplicitor does not affect the case of the 27. Lastly, we should deal with the contention of the
prosecution materially or make it improbable and the Court will appellant dealing with the delay in institution of the FIR.
not be inclined to interfere with the finding recorded by the high Admittedly, the occurrence took place at about 10 p.m. on 12th
courts. (Ref. State of U.P. v. Naresh and Ors. [(2011) 4 SCC March, 1991 and the FIR was lodged on 13th March, 1991 at
C C about 8.45 a.m. There is some delay in lodging of the FIR, but
324] and Bhola @ Paras Ram v. State of H.P. [(2009) 11 SCC
460]. this delay stands fully explained by the statement of the
witnesses and the conduct of such witnesses. PW1 is the author
25. In the case of Munshi Prasad & Ors. v. State of Bihar of the FIR. According to his statement, he had first taken the
[(2002) 1 SCC 351], this Court has also taken the view, after deceased to the hospital and he remained in the hospital and
discussing various judgments, that some documents are not D D went to the police station in the morning hours of 13th March,
substantive evidence by themselves and it is the statement of 1991. This conduct of PW1 is natural. He is the brother of the
expert or the author of the document that has the credibility of deceased and was grieving the death of his brother. His priority
a substantive evidence. In the similar vein, the inquest report would be to ensure that his brother gets the best of the medical
also cannot be termed to be basic or substantive evidence aid at the earliest and then to look after him. There is some
being prepared by the police personnel being a non-medical E E distance between the hospital and the place of occurrence and
man and at the earliest stage of the proceeding. In the wake he remained in the hospital to look after his brother.
of the aforesaid, a mere omission of a particular injury or Unfortunately, his brother was declared dead. This entire
indication therein of an additional one cannot, however, controversy has been well discussed by the trial court in its
invalidate the prosecution case. The evidential value of inquest judgment. The relevant part of the judgment reads as under:-
report cannot be placed at a level as has been so placed by F F
the appellants. The Inquest Report or the post mortem report “According to the prosecution, the incident occurred on
cannot be termed to be basic evidence or substantive evidence 12.03.1991 at 10.00 p.m. whereas the first information
and discrepancies occurring therein cannot be termed to be report of the incident was lodged with Police Station
fatal nor even a suspicious circumstance which would warrant Kaladungi on dated 13.02.1991 at 8.45 a.m. The place of
a benefit to the accused and result in dismissal of the case of G incident is situated at a distance of 10 kms from the Police
G
the prosecution. Station. The learned defence counsel has pleaded that no
satisfactory explanation has been given for delay in lodging
26. In view of the above discussion on the evidence of the first information report, due to which the prosecution story
case and other attending circumstances seen in light of the appears to be doubtful. PW-1 Bhopal Chander has stated
above stated principles, we have no hesitation in coming to the that after receiving injury Devender was taken to the
conclusion that the discrepancies pointed out by the appellants H H
hospital in Haldwani in a tractor where he died and A A must not nurture fanciful doubts or lingering suspicion and
subsequently he went to Police Station Kaladungi in the thereby destroy social defence. Justice cannot be made
morning to lodge the complaint leaving the dead body in sterile on the plea that it is better to let a hundred guilty
the Hospital in Haldwani itself. It is the natural process that escape than punish an innocent. Letting the guilty escape
the every family member first of all tries to save the life of is not doing justice according to law. (See Gurbachan
injured instead of lodging first information report and the B B Singh v. Satpal Singh) The prosecution is not required to
same has happened in the present case as well that the meet any and every hypothesis put forward by the accused.
complainant first of all brought his brother to the hospital (See State of U.P. v. Ashok Kumar Srivastava.) A
in Haldwani in order to save his life where he died and reasonable doubt is not an imaginary, trivial or merely
subsequently he went to the Police Station and lodged the possible doubt, but a fair doubt based upon reason and
complaint. Keeping in view the circumstances of the case, C C common sense. It must grow out of the evidence in the
satisfactory explanation is available on the file to the delay case. If a case is proved perfectly, it is argued that it is
in lodging first information report.” artificial; if a case has some inevitable flaws because
human beings are prone to err, it is argued that it is too
28. We are in full agreement with the reasoning given by imperfect. One wonders whether in the meticulous
the trial court for accepting that delay in lodging of the FIR had hypersensitivity to eliminate a rare innocent from being
been duly explained. It is not the law that mere delay in lodging D D
punished, many guilty persons must be allowed to escape.
the FIR would always or unexceptionally prove fatal to the case Proof beyond reasonable doubt is a guideline, not a fetish.
of the prosecution. Wherever the delay is properly explained [See Inder Singh v. State (Delhi Admn.). Vague hunches
by the prosecution or the witnesses, the court would be reluctant cannot take place of judicial evaluation.
to grant benefit of acquittal to the accused only on that ground.
In the case of Nagesh v. State of Karnataka [(2012) 6 SCC E E ‘A Judge does not preside over a criminal trial, merely to
477], the Court discussed various judgments of this Court and see that no innocent man is punished. A Judge also
while noticing the principle that “letting the guilty escape is not presides to see that a guilty man does not escape. Both
doing justice according to law” held as under:- are public duties.’ [Per Viscount Simon in Stirland v.
Director of Public Prosecutions quoted in State of U.P.
“26. The Court has to examine the evidence in its entirety, F F v. Anil Singh (SCC p. 692, para 17).]
particularly, in the case of circumstantial evidence, the
Court cannot just take one aspect of the entire evidence Doubts would be called reasonable if they are free from a
led in the case like delay in lodging the FIR in isolation of zest for abstract speculation. Law cannot afford any
the other evidence placed on record and give undue favourite other than truth.”
advantage to the theory of benefit of doubt in favour of the
G G 29. In other cases, the Court has taken the view that mere
accused.
delay in lodging the FIR may not prove fatal in all cases, but in
27. This Court in Sucha Singh v. State of Punjab has given circumstances of a case, delay in lodging the FIR can
stated: (SCC pp. 653-54, para 20) be one of the factors which corrode the credibility of the
prosecution version. Delay in lodging of the FIR cannot be a
“20. Exaggerated devotion to the rule of benefit of doubt H H ground for throwing the entire prosecution case. In cases, where
JEEWAN & ORS. v. STATE OF UTTARAKHAND 1009 [2012] 11 S.C.R. 1010
there is some delay in filing the FIR, the complainant must give A A KISHAN CHAND
explanation for the same. Undoubtedly, delay in lodging the FIR v.
does not make the complainant’s case improbable when such STATE OF HARYANA
delay is properly explained. (Ref. Bhajan Singh @ Harbhajan (Criminal Appeal No. 1375 of 2008)
Singh & Ors. v. State of Haryana [(2011) 7 SCC 421] and
DECEMBER 13, 2012
Jitender Kumar v. State of Haryana [(2012) 6 SCC 204]. B B
30. The delay having been properly explained by the
investigating agency, PW2 and PW1, we see no reason to take
the view that delay in lodging of the FIR in the facts of the Narcotics Drugs and Psychotropic Substances Act, 1985:
present case would prove fatal to the case of the prosecution. s.42 – Non-compliance of – Held: Provisions of s. 42 or
C C
The motive is not an absolute essential feature of commission s. 50 being mandatory require exact and definite compliance
of a crime. According to PW1, there had been scuffle between as opposed to the principle of substantial compliance – The
the parties few days prior to the date of occurrence, when the trial court clearly recorded that the IO did not reduce the secret
accused persons were playing cards along with the deceased information in writing nor did he send the same to the higher
and gambling which could be settled only by the intervention of
the Sabhapati and that they had threatened the deceased and D D officer or to the police station for registration of the case – The
Investigating Officer, in the examination-in-chief, while
stated that they would see him later. This may or may not be a referring to the story of the prosecution, does not state that
motive enough to kill somebody, but the fact remains that prior he had made the report immediately upon receiving the
to the date of occurrence, there was a scuffle between the secret information and had informed his senior officers – In
parties where the accused persons had threatened the view of the total non-compliance of s. 42, non-involvement of
deceased. E E
any independent witness at any stage of the investigation and
31. In view of the above discussion, we see no reason to the presence of the Tehsildar-cum-Executive Magistrate being
interfere with the concurrent finding of conviction and order of doubtful, prosecution has failed to prove its case beyond
sentence passed by the courts. Consequently the appeal is reasonable doubt – Both the courts below have fallen in error
dismissed. of law as well as that of appreciation of evidence – Accused
F F is acquitted – Constitution of India, 1950 – Art.136.
R.P. Appeal dismissed.
ss. 42, 50 and 57 – Compliance of – Held: These
provisions provide separate rights and protections – They are
neither inter-linked nor inter-dependent so as to dispense
G compliance of one with the compliance of another – In fact,
they operate in different fields and at different stages – That
distinction has to be kept in mind by the courts while deciding
such cases – The sending of report as required u/s. 57 of the
Act the following day will be no compliance, factually and/or
H 1010
KISHAN CHAND v. STATE OF HARYANA 1011 1012 SUPREME COURT REPORTS [2012] 11 S.C.R.
in the eyes of law to the provisions of s. 42 of the Act. A A on the strength of substantial compliance. The purpose
of these provisions is to provide due protection to a
The appellant along with another accused was suspect against false implication and ensure that these
prosecuted for committing an offence u/s 18 of the provisions are strictly complied with to further the
Narcotics Drugs and Psychotropic Substances Act, 1985 legislative mandate of fair investigation and trial. It will be
(the Act). The prosecution case was that on 19-7-2000, on opposed to the very essence of criminal jurisprudence,
B B
receiving secret information, PW7, who at the relevant if upon apparent and admitted non-compliance of these
time was the Station House Officer of Police Station, provisions in their entirety, the Court has to examine the
apprehended the appellant, who was driving a scooter, element of prejudice. The element of prejudice is of some
with the other accused as the pillion rider. P.W. 7 called significance where provisions are directory or are of the
the Tehsildar (PW-5), who directed the former to conduct nature admitting substantial compliance. Where the duty
the search of the scooter. Thereupon 3.800 kg of opium C C
is absolute, the element of prejudice would be of least
was stated to have been recovered from the dicky of the relevancy. Absolute duty coupled with strict compliance
scooter. The trial court acquitted the other accused, but would rule out the element of prejudice where there is
convicted the appellant u/s 18 of the Act and sentenced total non-compliance of the provision. [Para16, 19, 21 and
him to undergo RI for 10 years and to pay a fine of Rs. 1 22] [1023-E; 1026-D-E; 1027-G]
lakh. The High Court upheld the conviction and the D D
sentence. *Karnail Singh v. State of Haryana 2009 (11) SCR 470
= (2009) 8 SCC 539 - relied on.
In the instant appeal filed by the convict, it was
contended for the appellant that there was no Abdul Rashid Ibrahim Mansuri v. State of Gujarat 2000
compliance with the provisions of sub-ss (1) and (2) of E E (1) SCR 542 = (2000) 2 SCC 513; Sajan Abraham v. State
s. 42 of the Act. The appellant also raised a serious doubt of Kerala 2001 (1) Suppl. SCR 335 = (2001) 6 SCC 692;
about the recovery and the very presence of PW5. Rajinder Singh v. State of Haryana 2011 (9) SCR 879 =
(2011) 8 SCC 130; Karnail Singh v. State of Haryana 2009
Allowing the appeal, the Court (11) SCR 470 = (2009) 8 SCC 539; State of Delhi v. Ram
Avtar alias Rama 2011 (7) SCR 1129 = (2011) 12 SCC 207
HELD: 1.1. The language of s. 42 Narcotics Drugs F F
and Psychotropic Substances Act, 1985 does not admit – referred to
any ambiguity. The provisions like s. 42 or s. 50 of the Act Beckodan Abdul Rahiman v. State of Kerala 2002 (3)
are the provisions which require exact and definite SCR 53 - cited.
compliance as opposed to the principle of substantial
compliance. The Constitution Bench in the case of G G 1.2. In the instant case, both the trial court and the
Karnail Singh* carved out an exception which is not High Court have proceeded on the basis of substantial
founded on substantial compliance but is based upon compliance and there being no prejudice to the accused,
delayed compliance duly explained by definite and though clearly recording that it was an admitted case of
reliable grounds. These are indefeasible, protective rights total non-compliance. The trial court clearly recorded that
vested in a suspect and are incapable of being shadowed H H the IO did not reduce the secret information in writing nor
did he send the same to the higher officer or to the police
station for registration of the case. PW-7, the A A the site in his official jeep No. HR 09 7007 driven by DW1
Investigating Officer, in the examination-in-chief, while and no other person was in the jeep. He claimed to have
referring to the story of the prosecution, does not state left the spot at about 11.15 a.m. on 19-7-2000. The driver
that he had made the report immediately upon receiving of Jeep No. HR 09 7007 was examined as DW-1 along
the secret information and has informed his senior with log book. The suggestion in his cross-examination
officers. The statement of PW7 puts the matter beyond B B that every movement of the vehicles is not entered in the
ambiguity that there was ‘total non-compliance of the log book and that the vehicle was used by PW5 on the
statutory provisions of s. 42 of the Act’. Once, there is day of the incident was categorically denied by him and
total non-compliance and these provisions being no other question was put to this witness. There is no
mandatory in nature, the prosecution case must fail. reason to disbelieve the statement of DW1, particularly,
[Para 13, 15 and 23] [1022-G-H; 1023-C-E; 1028-C-E] C C when he produced the log book maintained in normal
course of business. The log book showed a clear entry
1.3. It is not a case where any reason has come in
at serial no. 422 dated 19-7-2000 where the vehicle in
evidence as to why the secret information was not
question was stated to be used by the Naib Tehsildar,
reduced to writing and sent to the higher officer, which
from 12.30 p.m. to 7.00 p.m. PW5, Tehsildar-cum-Executive
is the requirement to be adhered to ‘pre-search’. The
D Magistrate, in fact, did not use the official vehicle on that
sending of report as required u/s. 57 of the Act on D
day as per the log book. The witness even gave the exact
20.7.2000 will be no compliance, factually and/or in the
reading of the meter of the vehicle which showed that it
eyes of law to the provisions of s. 42 of the Act. These
was driven for 117 kilometers on that date by the Naib
are separate rights and protections available to an
Tehsildar, not even anywhere near to the area where the
accused and their compliance has to be done in
accused is alleged to have been apprehended. It was
accordance with the provisions of ss. 42, 50 and 57 of the E E also stated that except that journey, the vehicle had gone
Act. They are neither inter-linked nor inter-dependent so
nowhere. He specifically stated that he had never taken
as to dispense compliance of one with the compliance
PW5 to the place in question. Once, the statement of this
of another. In fact, they operate in different fields and at
witness is examined with the statement of PW7, that he
different stages. That distinction has to be kept in mind
did not associate any private person/independent
by the courts while deciding such cases. [Para 24] [1028- F F witness in the recovery or in the entire process of
G-H; 1029-A-C]
investigation and that he did not even record such a fact
2.1. There is a serious doubt in the recovery and the in the proceedings casts a shadow of doubt over the
very presence of PW5, at the time of recovery. The case of the prosecution. [Para 25-27] [1029-C-H; 1030-A-
prosecution has not been able to establish this aspect of G-H; 1031-A-D]
the case beyond reasonable doubt. According to PW7 G G
2.2. In view of the total non-compliance of s. 42, non-
after stopping the scooter of the accused, he had sent
involvement of any independent witness at any stage of
for PW5 who had reached there and recovery was
the investigation and the presence of PW5 at the spot
effected in his presence after giving option to the
being so very doubtful, this Court holds that the
accused as required u/s. 50 of the Act. PW5, in his
prosecution has failed to prove its case beyond
statement had categorically stated that he had come to H H
reasonable doubt. Both the High Court and the trial court A A and to further undergo rigorous imprisonment for a period of
have noticed the evidence as well as its legal position. two years to accused Kishan Chand, while it acquitted the other
Thus, both courts below have fallen in error of law as well accused Ramphal as the prosecution had failed to prove its
as that of appreciation of evidence. The accused is charge against that accused.
acquitted. [Para 27-29] [1031-D-G]
2. Upon appeal, the judgment of the Trial Court was
B B
Case Law Reference: affirmed by the High Court as it was of the opinion that the
judgment of the Trial Court did not warrant any interference.
2002 (3) SCR 53 cited para 8
Thus, by its judgment dated 22nd April, 2008, the High Court
2000 (1) SCR 542 referred to para 8 sustained the conviction and sentence of the accused.
Aggrieved from the judgment of the Division Bench of the High
2001 (1) Suppl. SCR 335 referred to para 9 C C Court, the accused filed the present appeal.
3. Before we dwell upon the merit or otherwise of the
2009 (11) SCR 470 relied on para 11 contentions raised before us, it will be appropriate for the Court
to fully narrate the facts resulting in the conviction of the
D D appellant. On 19th July, 2000, a secret information was received
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal by Sub-Inspector Kaptan Singh, PW7 who at the relevant time
No. 1375 of 2008. was the Station House Officer of Police Station, Cheeka and
was present near the bus stand Bhagal in relation to
From the Judgment & Order dated 22.4.2008 of the High investigation of a crime. Assistant Sub-Inspector Mohinder
Court of Punjab and Haryana at Chandigarh in Criminal Appeal E E Singh was also present there. According to the information
No. 1481-SB-2002. received the accused/appellant Kishan Chand and Ramphal,
the other accused, used to smuggle opium on their Scooter No.
Hari Kesh Singh and Sanjay Gir (for Satyendra Kumar) for HR 31 B 1975. On that day, they were coming on Kakrala-
the Appellant. Kakrali Road and were on their way to Bhagal. It was further
Ramesh Kumar (for Naresh Bakshi) for the Respondent. F F informed that upon nakabandi, they could be caught red handed
and a large quantity of opium could be recovered from the
The Judgment of the Court was delivered by scooter. Kaptan Singh, PW7, then reached T-Point, turning
Theh Banehra and made the nakabandi. After 20-25 minutes,
SWATANTER KUMAR, J. 1. The Judge, Special Court, both the accused came on scooter from the side of Kakrala-
Kaithal, Haryana vide his judgment dated 31st July, 2002 Kakrali. Accused Kishan Chand was driving the scooter,
rendered the judgment of conviction and passed an order of G G
whereas accused Ramphal was the pillion rider. Suspecting the
sentence under Section 18 of the Narcotics Drugs and presence of narcotic substance in the scooter of the accused,
Psychotropic Substances Act, 1985 (for short “the Act”) and a notice under Section 50 of the Act, Ext. PC was given to both
awarded the punishment to undergo Rigorous Imprisonment for the accused and they were asked to get the scooter searched
10 years and to pay a fine of Rs. 1 lakh, and in default thereto in the presence of a Gazetted Officer or a Magistrate. Ext. P
H H
C, was signed by both the accused which was also signed by A A 6. The prosecution examined eight witnesses including Shri
Assistant Sub-Inspectors Manohar Lal (PW6) and Mohinder S.K. Nagpal, Senior Scientific Officer, FSL, Madhuban. The
Singh. The accused vide their reply Ext. PD opted to give the accused in his statement under Section 313 CrPC refuted all
search in the presence of a Gazetted Officer. Ext. PD was also allegations of the prosecution levelled against them and
signed by the witnesses in addition to the accused. pleaded innocence. Accused Kishan Chand stated that ASI
B B Balwan Singh was resident of his village and there was a
4. Thereafter, the investigating officer called for Subhash dispute regarding land between the two families. The
Seoran PW5, Tehsildar-cum-Executive Magistrate, Guhla on possession of the land had been taken by the family of the
the spot, who then directed PW7 to conduct the search of the accused from ASI Balwan Singh. Thereafter, he had gone to
scooter. The scooter was having a Diggi (Tool box) and upon see Sarpanch Bansa Singh of Village Bhoosla in connection
checking the same, opium was recovered which was wrapped
in a polythene. From the recovered opium, 50 grams opium
C C with some personal work and at about 4 p.m., he was going
towards Village Kalar Majra and on the way, Joginder, son of
was separated for the purposes of sample and a separate Dewa Singh met him at the Buss Adda Bhagal and when they
parcel was made of the same. On weighing, the residue opium were taking tea in a shop, then two police officials came in a
was found to be 3 kg and 750 grams. It was sealed in a civil dress and asked them to go to police post Bhagal as he
separate parcel with the seals SS of Tehsildar, Subhash was required by ASI Mohinder Singh Incharge Police Post
Seoran, PW5 and KS of the investigating officer, Kaptan Singh, D D
Bhagal and, thus, a false case was planted against him.
PW7.
7. As already noticed, the Trial Court acquitted accused
5. Kaptan Singh handed over his seal KS to ASI Manohar Ramphal, but convicted Kishan Chand and the conviction was
Lal, PW6 whereas PW5 retained his seal with him. The case upheld by the High Court giving rise to the filing of the present
property, sample parcel, specimen seal impressions were E E appeal.
taken into custody by recovery memo Ext. PG, along with the
scooter. It was attested by the Tehsildar and other witnesses. 8. At this stage itself, we would like to notice certain
A rukka, Ext. PA was sent to the police station, where on the findings of the Trial Court which were recorded, while acquitting
basis of the same, a formal First Information Report Ext. PA/1 the accused Ramphal and convicting accused Kishan Chand.
was recorded. Rough site plan, Ext. PF was also prepared by F F
the Investigating Officer. Thereafter, the accused were arrested. “33. The learned defence counsel further argued that in the
The statements of the witnesses under Section 161 of the present case inspite of secret information the information
Code of Criminal Procedure, 1973 (for short “CrPC”) were was not sent to the higher officer as required under
recorded. After completion of the investigation at the spot, the Section 42(2) of the NDPS Act nor the case was
case property was deposited with the MHC along with the registered. As such, on this sole ground, accused are
G G entitled to acquittal. The reliance has been placed on
scooter and seal impressions on the same day. A report under
Section 57 of the Act Ext. PG was also sent to the higher officer. Beckodan Abdul Rahiman Versus State of Kerala, 2002
After completing the investigation, a report under Section 173 (2) RCR (Criminal)-385, where in that case, police
CrPC was prepared by PW7 and submitted before the court recovered opium from accused on receipt of secret
of competent jurisdiction. information on telephone. Information was not reduced in
H H
writing as required under section 42 of the NDPS Act. The A A balance the stringency for an accused by casting
conviction was set aside. The reliance was also placed on an obligation on the prosecution for its strict
Lamin Bojang versus State of Maharashtra, 1997 (2) compliance. The stringency is because of the type
RCR – 294. of crime involved under it, so that no such person
escapes from the clutches of law. The court
34. Admittedly in the present case, the secret information however, while construing such provisions strictly
was received against the accused. The investigation B B
should not interpret it so, literally so as to render its
officer did not reduce the secret information in writing nor compliance, impossible. However, before drawing
send the same to the higher officer or to the police station such an inference, it should be examined with
for registration of the case. Non-compliance of section caution and circumspection. In other words, if in a
42(2) is not fatal to the prosecution case in the present case, the following of mandate strictly, results in
case, because had the investigating officer tried to take C C
delay in trapping an accused, which may lead the
down the secret information in writing and send the same accused to escape, then prosecution case should
to the police officer in that eventuality, there was possibility not be thrown out.”
of the accused to escape as they were to come on a
scooter. The statement of investigating officer proves that 9. The Division Bench of the High Court confirmed the
after picketing within 20 minutes, the accused appeared D D finding recorded by the Trial Court. It also recorded that the
on the scooter. Since, there was possibility of the accused accused was in motion at the time when the secret information
to escape, so in such a situation, if the investigating officer was received. Since secret information was from a reliable
did not reduce into writing the secret information and send source, PW7 acted swiftly and arrested the accused and under
the same to the superior officer, then it cannot be said that these circumstances, the secret information report was not
any prejudice has been used to the accused, particularly, E E recorded by the investigating officer immediately nor was it sent
when the recovery has been effected in the presence of to the superior officer. Therefore, in these circumstances, it is
Subhash Seoran Teshildar who is an Executive Magistrate. to be seen whether any prejudice was caused to the accused
The Hon’ble Supreme Court in a case Sajjan Abraham or not.
versus State of Kerala [2001 (2) RCR (Criminal)-808],
wherein it was observed as under:- 10. Relying upon the following paragraph of the judgment
F F
of this Court regarding ‘substantial compliance’ in Sajan
“In construing any facts to find, whether prosecution Abraham v. State of Kerala [(2001) 6 SCC 692], the High
has complied with the mandate of any provision Court sustained the order of the Trial Court.
which is mandatory, one has to examine it with
“6........ In construing any facts to find, whether the
pragmatic approach. The law under the aforesaid
G G prosecution has complied with the mandate of any
act being stringent to the persons involved in the
provision which is mandatory, one has to examine it with
field of illicit drug abuse, the legislature time and
a pragmatic approach. The law under the aforesaid Act
again has made some of the provisions obligatory
being stringent to the persons involved in the field of illicit
for the prosecution to comply, which the courts have
drug traffic and drug abuse, the legislature time and again
interpreted it to be mandatory. This is in order to
H H has made some of its provisions obligatory for the
prosecution to comply with, which the courts have A A 3. The entire recovery is vitiated as PW5, Subhash
interpreted it to be mandatory. This is in order to balance Seoran, Tehsildar-cum-Executive Magistrate, was
the stringency for an accused by casting an obligation on never present at the site and there was no
the prosecution for its strict compliance. The stringency is compliance to the provisions of Section 50 of the
because of the type of crime involved under it, so that no Act as stated. No independent witness had been
such person escapes from the clutches of the law. The B B associated which itself will show that the prosecution
court however while construing such provisions strictly had not been able to establish its case beyond
should not interpret them so literally so as to render their reasonable doubt and that the appellant had been
compliance, impossible. However, before drawing such an falsely implicated in the case.
inference, it should be examined with caution and
circumspection. In other words, if in a case, the following C C 12. To the contra, the submission on behalf of the State of
of a mandate strictly, results in delay in trapping an Haryana is that the prosecution has been able to establish its
accused, which may lead the accused to escape, then the case beyond reasonable doubt. There had been substantial
prosecution case should not be thrown out.” compliance to the provisions of Section 42 of the Act. The
11. While challenging the above concurrent findings of the compliance with the provisions of Section 57 and the Report
courts, the learned counsel appearing for the appellant has D which was sent vide Ext. PG on 20th July, 2002, fully
D
raised the following contentions for consideration by the court. establishes the substantial compliance to the provisions of
Section 42 of the Act. The provisions of Section 50 had also
1. Apparently and, in fact, admittedly there is no been complied with and, therefore, the contentions raised on
compliance with the provisions of sub-sections (1) behalf of the appellant have no merit. On the other hand the
and (2) of Section 42 of the Act and they are question of falsely implicating the appellant does not arise as
mandatory and not directory. Once, there is non- E E the secret information was reliable and has so been established
compliance of these mandatory provisions, the by the prosecution evidence. The judgment under appeal,
appellant is entitled to acquittal. In this regard, the according to the counsel for the State, does not call for any
counsel for the appellant has relied upon the interference.
judgment of this court in the case of Rajinder Singh
v. State of Haryana [(2011) 8 SCC 130] and the F F 13. First and the foremost, we will deal with the question
Constitution Bench judgment in the case of Karnail of non-compliance with Section 42(1) and (2) of the Act. It is
Singh v. State of Haryana [(2009) 8 SCC 539]. necessary for us to examine whether factually there was a
2. Once, on similar facts and evidence, and compliance or non-compliance of the said provisions and, if so,
particularly for non-production of key of the diggy to what effect. In this regard, there can be no better evidence
G G than the statement of Investigating Officer PW7 himself. PW7,
of the scooter, the accused Ramphal was
acquitted, the appellant could not have been Kaptan Singh in his statement while referring to the story of the
convicted by the courts, thus, there is inbuilt prosecution as noticed above, does not state in examination-
contradiction in the judgments and they suffer from in-chief that he had made the report immediately upon receiving
error in appreciation of evidence as well as in the secret information and had informed his senior officers.
application of law. H H
14. In his examination-in-chief, such statement is A A language of the provision strictly or by necessary implication
conspicuous by its very absence. On the contra, in his cross- admits of such compliance.
examination by the defence, he clearly admits as under:-
17. In our considered view, this controversy is no more res
“....the distance between the place of secret information integra and stands answered by a Constitution Bench judgment
and the place of recovery is about 1½ kilometre. Secret of this Court in the case of Karnail Singh (supra). In that
information was not reduced into the writing so no copy of B B judgment, the Court in the very opening paragraph noticed that
the same was sent to the higher officer. I did not ask any in the case of Abdul Rashid Ibrahim Mansuri v. State of
witness of the public in writing to join the raiding party” Gujarat [(2000) 2 SCC 513], a three Judge Bench of the Court
had held that compliance of Section 42 of the Act is mandatory
15. The learned Trial Court in para 34 of its judgment and failure to take down the information in writing and sending
clearly recorded that admittedly in the present case, the secret C C the report forthwith to the immediate officer superior may cause
information was received against the accused. The prejudice to the accused. However, in the case of Sajan
Investigation Officer did not reduce the secret information in Abraham (supra), again a Bench of three Judges, held that this
writing nor did he send the same to the higher officer or to the provision is not mandatory and substantial compliance was
police station for registration of the case. However, stating that sufficient. The Court noticed, if there is total non-compliance of
if this was done, there was possibility that the accused D D the provisions of Section 42 of the Act, it would adversely affect
escaped, the trial court observed that if the Investigating Officer the prosecution case and to that extent, it is mandatory. But, if
did not reduce into writing the secret information and sent the there is delay, whether it was undue or whether the same was
same to the superior officer, then in light of the given explained or not, will be a question of fact in each case. The
circumstances, it could not be said that any prejudice was Court in paragraph 35 of the judgment held as under:-
caused to the accused. E E
35. In conclusion, what is to be noticed is that Abdul Rashid
16. We are unable to contribute to this interpretation and did not require literal compliance with the requirements of
approach of the Trial Court and the High Court in relation to the Sections 42(1) and 42(2) nor did Sajan Abraham hold that
provisions of sub-Section (1) and (2) of Section 42 of the Act. the requirements of Sections 42(1) and 42(2) need not be
The language of Section 42 does not admit any ambiguity. fulfilled at all. The effect of the two decisions was as
These are penal provisions and prescribe very harsh F F
follows:
punishments for the offender. The question of substantial
compliance of these provisions would amount to (a) The officer on receiving the information [of the nature
misconstruction of these relevant provisions. It is a settled canon referred to in sub-section (1) of Section 42] from any
of interpretation that the penal provisions, particularly with person had to record it in writing in the register concerned
harsher punishments and with clear intendment of the legislature G G and forthwith send a copy to his immediate official superior,
for definite compliance, ought to be construed strictly. The before proceeding to take action in terms of clauses (a)
doctrine of substantial compliance cannot be called in aid to to (d) of Section 42(1).
answer such interpretations. The principle of substantial
compliance would be applicable in the cases where the (b) But if the information was received when the officer was
H H not in the police station, but while he was on the move
either on patrol duty or otherwise, either by mobile phone, A A does not record the information at all, and does not inform
or other means, and the information calls for immediate the official superior at all, then also it will be a clear
action and any delay would have resulted in the goods or violation of Section 42 of the Act. Whether there is
evidence being removed or destroyed, it would not be adequate or substantial compliance with Section 42 or not
feasible or practical to take down in writing the information is a question of fact to be decided in each case. The above
given to him, in such a situation, he could take action as B B position got strengthened with the amendment to Section
per clauses (a) to (d) of Section 42(1) and thereafter, as 42 by Act 9 of 2001.
soon as it is practical, record the information in writing and
forthwith inform the same to the official superior. 18. Following the above judgment, a Bench of this Court
in the case of Rajinder Singh (supra) took the view that total
(c) In other words, the compliance with the requirements non-compliance of the provisions of sub-Sections (1) and (2)
C C of Section 42 of the Act is impermissible but delayed
of Sections 42(1) and 42(2) in regard to writing down the
information received and sending a copy thereof to the compliance with a satisfactory explanation for delay can,
superior officer, should normally precede the entry, search however, be countenanced.
and seizure by the officer. But in special circumstances
involving emergent situations, the recording of the 19. The provisions like Section 42 or 50 of the Act are the
information in writing and sending a copy thereof to the D D provisions which require exact and definite compliance as
official superior may get postponed by a reasonable opposed to the principle of substantial compliance. The
period, that is, after the search, entry and seizure. The Constitution Bench in the case of Karnail Singh (supra) carved
question is one of urgency and expediency. out an exception which is not founded on substantial
compliance but is based upon delayed compliance duly
(d) While total non-compliance with requirements of sub- E E explained by definite and reliable grounds.
sections (1) and (2) of Section 42 is impermissible,
delayed compliance with satisfactory explanation about the 20. While dealing with the requirement of complying with
delay will be acceptable compliance with Section 42. To the provisions of Section 50 of the Act and keeping in mind its
illustrate, if any delay may result in the accused escaping mandatory nature, a Bench of this Court held that there is need
or the goods or evidence being destroyed or removed, not for exact compliance without any attribute to the element of
F F
recording in writing the information received, before prejudice, where there is an admitted or apparent non-
initiating action, or non-sending of a copy of such compliance. The Court in the case of State of Delhi v. Ram
information to the official superior forthwith, may not be Avtar alias Rama [(2011) 12 SCC 207], held as under:-
treated as violation of Section 42. But if the information
26. The High Court while relying upon the judgment of this
was received when the police officer was in the police G G Court in Baldev Singh and rejecting the theory of substantial
station with sufficient time to take action, and if the police
compliance, which had been suggested in Joseph Fernandez,
officer fails to record in writing the information received,
found that the intimation did not satisfy the provisions of Section
or fails to send a copy thereof, to the official superior, then
50 of the Act. The Court reasoned that the expression “duly”
it will be a suspicious circumstance being a clear violation
used in Section 50 of the Act connotes not “substantial” but
of Section 42 of the Act. Similarly, where the police officer
H H “exact and definite compliance”. Vide Ext. PW 6/A, the
appellant was informed that a gazetted officer or a Magistrate A A 22. The purpose of these provisions is to provide due
could be arranged for taking his search, if he so required. This protection to a suspect against false implication and ensure that
intimation could not be treated as communicating to the these provisions are strictly complied with to further the
appellant that he had a right under law, to be searched before legislative mandate of fair investigation and trial. It will be
the said authorities. As the recovery itself was illegal, the opposed to the very essence of criminal jurisprudence, if upon
conviction and sentence has to be set aside. B B apparent and admitted non-compliance of these provisions in
their entirety, the Court has to examine the element of prejudice.
27. It is a settled canon of criminal jurisprudence that when The element of prejudice is of some significance where
a safeguard or a right is provided, favouring the accused, provisions are directory or are of the nature admitting
compliance therewith should be strictly construed. As already substantial compliance. Where the duty is absolute, the element
held by the Constitution Bench in Vijaysinh Chandubha Jadeja,
the theory of “substantial compliance” would not be applicable
C C of prejudice would be of least relevancy. Absolute duty coupled
with strict compliance would rule out the element of prejudice
to such situations, particularly where the punishment provided where there is total non-compliance of the provision.
is very harsh and is likely to cause serious prejudice against
the suspect. The safeguard cannot be treated as a formality, 23. Reverting to the facts of the present case, we have
but it must be construed in its proper perspective, compliance already noticed that both the Trial Court and the High Court
therewith must be ensured. The law has provided a right to the D D have proceeded on the basis of substantial compliance and
accused, and makes it obligatory upon the officer concerned there being no prejudice to the accused, though clearly
to make the suspect aware of such right. The officer had prior recording that it was an admitted case of total non-compliance.
information of the raid; thus, he was expected to be prepared The statement of PW7 puts the matter beyond ambiguity that
for carrying out his duties of investigation in accordance with there was ‘total non-compliance of the statutory provisions of
the provisions of Section 50 of the Act. While discharging the E E Section 42 of the Act’. Once, there is total non-compliance and
onus of Section 50 of the Act, the prosecution has to establish these provisions being mandatory in nature, the prosecution
that information regarding the existence of such a right had been case must fail.
given to the suspect. If such information is incomplete and
24. Reliance placed by the learned counsel appearing for
ambiguous, then it cannot be construed to satisfy the
F the State on the case of Sajan Abraham (supra) is entirely
requirements of Section 50 of the Act. Non-compliance with the F
misplaced, firstly in view of the Constitution Bench judgment of
provisions of Section 50 of the Act would cause prejudice to
this Court in the case of Karnail Singh (supra). Secondly, in
the accused, and, therefore, amount to the denial of a fair trial.
that case the Court was also dealing with the application of the
21. When there is total and definite non-compliance of such provisions of Section 57 of the Act which are worded differently
statutory provisions, the question of prejudice loses its and have different requirements, as opposed to Sections 42
G G and 50 of the Act. It is not a case where any reason has come
significance. It will per se amount to prejudice. These are
indefeasible, protective rights vested in a suspect and are in evidence as to why the secret information was not reduced
incapable of being shadowed on the strength of substantial to writing and sent to the higher officer, which is the requirement
compliance. to be adhered to ‘pre-search’. The question of sending it
immediately thereafter does not arise in the present case, as
H H
it is an admitted position that there is total non-compliance of A A No. HR 09 7007. It will be interesting to note the examination
Section 42 of the Act. The sending of report as required under in chief of this witness.
Section 57 of the Act on 20th July, 2000 will be no compliance,
“I have brought the Log Book of Jeep no. HR09-7007. I
factually and/or in the eyes of law to the provisions of Section
am working as driver in Tehsil Office, at Guhla. In this Log
42 of the Act. These are separate rights and protections
Book at sr. no. 422 dated 19.7.2K, the vehicle was used
available to an accused and their compliance has to be done B B by Naib Tehsildar from 12.30 P.M. to 7 P.M. and it was
in accordance with the provisions of Sections 42, 50 and 57
used in the area of Kamehri, Baupur, Gagarpur, Harnoli,
of the Act. They are neither inter-linked nor inter-dependent so
Landaheri and the beginning of journey, the reading of
as to dispense compliance of one with the compliance of
speedometer was 85056 and closing of the journey was
another. In fact, they operate in different fields and at different
85173. Total numbers covered 117 kilometers. The Naib
stages. That distinction has to be kept in mind by the courts C C Tehsildar was Sh. Batti Sahib, of Guhla. Except this
while deciding such cases.
journey, the said vehicle has not gone anywhere. I had not
25. Now, we will deal with a serious doubt that has been gone with Sh. Subhash Seoran, the then Tehsildar at the
pointed out on behalf of the appellant in the recovery and the area of village Theh Banehra at its T-point or in that area.
very presence of PW5, Subhash Seoran, at the time of Copy of entry in the Log book is Ex. D1, nor I went in this
recovery. The prosecution has not been able to establish this D D vehicle with Tehsildar Sh. Subhash Seoran in the area of
aspect of the case beyond reasonable doubt. According to PW7 village Bhagal or at the turn of vill. Theh Banehra. The entry
after stopping the scooter of the accused at T-Point, Theh of the movement of the vehicle is definitely recorded in the
Banehra, he had sent for PW5 who had reached there and Log book. It is correct that I had not gone anywhere with
recovery was effected in his presence after giving option to the Tehsildar Guhla Sh. Subhash Seoran on 19.7.2000.
accused as required under Section 50 of the Act. We do not E E It is incorrect to suggest that the entries in the Log Book
consider it necessary to deal with the other contentions including
has not been made correctly and that every movements
the plea taken with regard to compliance of Section 50 of the
of the vehicles are not mentioned in this log book, rather
Act. We would only confine ourselves in regard to the doubt that
it has been made later on as per convenience of the
has been created in recovery of the contraband from the custody
driver. It is incorrect to suggest that on the alleged day, i.e.
of the accused. F F 19.7.2000, the vehicle was used by the Tehsildar Sh.
26. PW5 in his statement had categorically stated that he Subhash Seoran and I was also with him. It is further
had come to the site in his official jeep No. HR 09 7007 driven incorrect that on 19.7.2000, I had visited the area of village
by DW1, Desraj and no other person was in the jeep. He Bhagal at the turning of vill. Theh Banehra along with
claimed to have left the spot at about 11.15 a.m. on 19th July, Tehsildar Subhash Seoran in the aforesaid jeep.”
2000. The accused had contended that he was falsely G G 27. In his cross-examination, except the suggestion that
implicated, no independent witness was associated in the
every movement of the vehicles is not entered in the log book
recovery or in the entire investigation and lastly that no recovery
and that the vehicle was used by PW7 on that day, which
was effected and even PW5 has falsely deposed before the
suggestion he categorically denied, no other question was put
court. To support this contention, the accused had examined
to this witness. One has no reason to disbelieve the statement
DW-1 Desraj, the driver of the car along with log book of Jeep H H of DW1 particularly when he produced the log book maintained
KISHAN CHAND v. STATE OF HARYANA 1031 [2012] 11 S.C.R. 1032
in normal course of business. The log book showed a clear A A BIHAR PUBLIC SERVICE COMMISSION
entry at serial no. 422 dated 19th July, 2000 where the vehicle v.
in question was stated to be used by Mr. Bhatti, Naib Tehsildar, SAIYED HUSSAIN ABBAS RIZWI & ANR.
from 12.30 p.m. to 7.00 p.m. and was driven for 117 kms. PW5, (Civil Appeal No. 9052 of 2012)
Tehsildar-cum-Executive Magistrate, in fact, did not use the
DECEMBER 13, 2012
official vehicle on that day as per the log book. The witness even B B
gave the exact reading of the meter of the vehicle which showed [SWATANTER KUMAR AND SUDHANSU JYOTI
that it was driven for 117 kilometers on that date by the Naib MUKHOPADHAYA, JJ.]
Tehsildar, not even anywhere near to the area where the
accused is alleged to have been apprehended It was also RIGHT TO INFORMATON ACT, 2005
stated that except that journey, the vehicle had gone nowhere. C C
He specifically stated that he had never taken PW5 to the place s. 2(h) – ‘Public authority’ – Held: Public Service
in question. Once, the statement of this witness is examined Commission shall be a public authority within the scope of
with the statement of PW7, that he did not associate any private s.2(h).
person, independent witness in the recovery or in the entire
process of investigation and that he did not even record such ss. 8(1)(g), and 11 – Disclosure of names and addresses
D D of members of interview board constituted by State Public
a fact in this proceedings casts a shadow of doubt over the
case of the prosecution. Total non-compliance of Section 42, Service Commission – Held: If in the opinion of the authority
non-involvement of any independent witness at any stage of the concerned there is danger to life or possibility of danger to
investigation and the presence of PW5 at the spot being so physical safety of members, the State Information
very doubtful, thus, compel this Court to hold that the Commission would be entitled to bring such case within the
prosecution has failed to prove its case beyond reasonable E E exemption of s. 8(1)(g) – Direction to furnish the names and
doubt. addresses of the members of Interview Board would certainly
be opposed to the very spirit of s. 8(1)(g) and would ex facie
28. As already noticed, we do not propose to discuss other endanger their lives or physical safety – Further, such
arguments raised on behalf of the appellant. We may also disclosure would serve no fruitful much less any public
notice here that both the High Court and the Trial Court have F F purpose – Marks are required to be disclosed but disclosure
noticed the above evidence as well as its legal position. Thus, of individual names would hardly hold relevancy either to the
the Trial Court as well as the High Court has fallen in error of concept of transparency or for proper exercise of the right to
law as well as that of appreciation of evidence. information within the limitation of the Act – Therefore the
29. Resultantly, the present appeal is accepted. The Commission is not bound to disclose such information –
accused is acquitted of the offence under Section 18 of the Act G G Constitution of India, 1950 – Article 21.
and is directed to be set at liberty forthwith. The case property
be disposed of in accordance with the provisions of the Act. ss.2(f) and 2(j)) – Expressions ‘information’, and ‘right to
information’ – Explained.
R.P. Appeal allowed.
Respondent No. 1, claiming himself to be a public
H H 1032
BIHAR PUBLIC SERVICE COMMISSION v. SAIYED 1033 1034 SUPREME COURT REPORTS [2012] 11 S.C.R.
HUSSAIN ABBAS RIZWI
spirited person, filed an application seeking certain A A Commission has to apply its mind whether it is a case of
information under the Right to Information Act, 2005 in exemption within the provisions of the said section. The
connection with the selection of ‘State Examiner of expression ‘public interest’ has to be understood in its
Questioned Documents’ conducted by the State Public true connotation so as to give complete meaning to the
Service Commission. The Commission furnished relevant provisions of the Act. The expression ‘public
information nearly to all the queries except the names, B B interest’ must be viewed in its strict sense with all its
designations and addresses of the members of the exceptions so as to justify denial of a statutory exemption
Interview Board. The writ petition filed by respondent in terms of the Act. [Para 11 – 13 and 23] [1042-A-C-F;
No. 1 was dismissed by the Single Judge of the High 1046-G-H; 1047-A]
Court. But the Division Bench directed the Commission
Namit Sharma v. Union of India 2012 (8) SCALE 593 –
to provide the names of the members of the Interview C C referred to
Board while denying the disclosure of their addresses.
Black’s Law Dictionary (Eighth Edition) – referred to
Allowing the appeal, the Court
2.2. The expression ‘information’ as defined in s. 2(f)
HELD: 1. Public Service Commission is established
is exhaustive in nature. The Legislature has given
under Art.315 of the Constitution of India and, as such, D D meaning to the expression ‘information’ and has stated
there cannot be any escape from the conclusion that the
that it shall mean any material in any form including
Commission shall be a public authority within the scope
papers, samples, data material held in electronic form, etc.
of s.2(h) of the Right to Information Act, 2005. [Para 14]
Right to information u/s. 2(j) means the ‘right to
[1043-B-C]
information’ accessible under the Act which is held by or
2.1. Right to information is a basic and celebrated E E under the control of any public authority and includes the
fundamental/basic right but is not uncontrolled. It has its right to inspection of work, documents, records, taking
limitations. The right is subject to a dual check. Firstly, notes, extracts, taking certified sample of materials,
this right is subject to the restrictions inbuilt within the obtaining information in the form of diskettes, floppies
Act and secondly the constitutional limitations emerging and video cassettes, etc. The right sought to be exercised
from Art.21 of the Constitution. The right to information F F and information asked for should fall within the scope of
has to be balanced with the right to privacy within the ‘information’ and ‘right to information’ as defined under
framework of law. Section 8 of the Right to Information the Act. [Para 15] [1043-D-F]
Act gives the category of cases where the public authority
2.3. If the information called for falls in any of the
is exempted from providing the information. To such
categories specified u/s. 8 or relates to the organizations
exemptions, there are inbuilt exceptions under some of G G to which the Act itself does not apply in terms of s.24 of
the provisions, where despite exemption, the Information
the Act, the public authority can take such stand before
Commission may call upon the authority to furnish the
the Commission and decline to furnish such information.
information in the larger public interest. This shows the
Another aspect of exercise of this right is that where the
wide scope of these provisions as intended by the
information asked for relates to third party information,
framers of law. In such cases, the Information H H the Commission is required to follow the procedure
HUSSAIN ABBAS RIZWI
prescribed u/s. 11 of the Act. [Para 16] [1043-G-H; 1044-A] A A distinct expressions. They cannot be read or construed
as being synonymous. ‘Physical safety’ is a restricted
2.4. Section 8(1)(e) carves out a protection in favour
term while ‘life’ is a term of wide connotation. The
of a person who possesses information in his fiduciary
expression ‘life’ also appears in Art. 21 of the Constitution
relationship. In the instant case, the examining body (the
and has been provided a wide meaning. The expression
Commission), is in no fiduciary relationship with the
examiners (interviewers) or the candidate interviewed.
B B life u/s. 8(1(g) the Act, thus, has to be understood in
somewhat similar dimensions. If in the opinion of the
Once the fiduciary relationship is not established, the
authority concerned there is danger to life or possibility
obvious consequence is that the Commission cannot
of danger to physical safety, the State Information
claim exemption as contemplated u/s. 8(1)(e) of the Act.
Commission would be entitled to bring such case within
The question of directing disclosure for a larger public
interest, therefore, would not arise at all. [para 22 and 26] C C the exemption of s. 8(1)(g) of the Act. The disclosure of
information which would endanger the life or physical
[1046-B; 1051-G-H]
safety of any person is one category and identification
Central Board of Secondary Education & Anr. v. Aditya of the source of information or assistance given in
Bandopadhyay & Ors. (2011) 8 SCC 497 – relied on confidence for law enforcement or security purposes is
another category. The expression ‘for law enforcement
2.5. Section 8 opens with the non obstante language D D
or security purposes’ is to be read ejusdem generis only
and is an exception to the furnishing of information as is to the expression ‘assistance given in confidence’ and
required under the relevant provisions of the Act. In terms not to any other clause of the section. On the plain
of s.8(1)(g), the public authority is not obliged to furnish reading of s.8(1)(g), it becomes clear that the said clause
any such information the disclosure of which would is complete in itself. It cannot be said to have any
endanger the life or physical safety of any person or E E reference to the expression ‘assistance given in
identify the source of information or assistance given in confidence for law enforcement or security purposes’.
confidence for law enforcement and security purposes. Neither the language nor the object of the Section
[Paras 21- 22] [1045-C-E-F] requires such an interpretation. The High Court though
2.6. The interviewers hold the position of an ‘agent’ has referred to s. 8(1)(j) but it has, in fact, dealt with the
F F language of s. 8(1)(g). The reasoning of the High Court,
vis-a-vis the examining body which is the ‘principal’. This
relationship per se is not relatable to any of the therefore, is neither clear in reference to provision of the
exemption clauses but there are some clauses of Section nor in terms of the language thereof. [Para 27-28]
exemption, the foundation of which is not a particular [1052-A-C, F-H; 1053-A-C-G]
relationship like fiduciary relationship. Section 8(1)(g) can 2.7. The consequences that the interviewers or the
come into play with any kind of relationship. It concerns G G
members of the interview board would be exposed to in
with the cases where no obligation is cast upon the the event their names and addresses or individual marks
public authority to furnish information, the disclosure of given by them are disclosed, would be: Firstly, the
which would endanger (a) the life (b) physical safety of members of the Board are likely to be exposed to danger
any person. The legislature, in its wisdom, has used two to their lives or physical safety. Secondly, it will hamper
H H
HUSSAIN ABBAS RIZWI
effective performance and discharge of their duties as A A Department, Government of Bihar, Patna. The advertisement,
examiners. This is the information available with the inter alia, stated that written examination would be held if
examining body in confidence with the interviewers. adequate number of applications were received. As very limited
Declaration of collective marks to the candidates has number of applications were received, the Commission, in
been permitted by the authorities as well as the High terms of the advertisement, decided against the holding of
Court. There is no error of jurisdiction or reasoning in this B B written examination. It exercised the option to select the
regard. But direction to furnish the names and addresses candidates for appointment to the said post on the basis of viva
of the interviewers would ex facie endanger their lives or voce test alone. The Commission completed the process of
physical safety and would certainly be opposed to the selection and recommended the panel of selected candidates
very spirit of s. 8(1)(g) of the Act. The Commission is not to the State of Bihar.
bound to disclose the information asked for by the C C
applicant under Query No.1 of the application. The 3. One Saiyed Hussain Abbas Rizwi, respondent No.1
judgment of the High Court is set aside. [Para 29-31] herein, claiming to be a public spirited citizen, filed an
[1053-H; 1054-A-C; 1056-C-D] application before the Commission (appellant herein) under the
Right to Information Act, 2005 (for short “the Act”) on 16th
Case Law Reference: December, 2008 seeking information in relation to eight
D D queries. These queries concerned the interview which was held
2012 (8) SCALE 593 referred to Para 10
on 30th September, 2002 and 1st October, 2002 by the
(2011) 8 SCC 497] referred to para 25 Commission with regard to the above advertisement. These
queries, inter alia, related to providing the names, designation
CIVIL APPELLATE JURISDICTION : Civil Appeal No. and addresses of the subject experts present in the Interview
9052 of 2012. E E Board, names and addresses of the candidates who appeared,
From the Judgment & Order dated 20.01.2011 of the High the interview statement with certified photocopies of the marks
Court of Patna in LPA No. 102 of 2010. of all the candidates, criteria for selection of the candidates,
tabulated statement containing average marks allotted to the
Navin Prakash for the Appellant. candidates from matriculation to M.Sc. during the selection
Mamta Tiwari, Pranav Vyas (for Fox Mandal & Co.) Anjan F F process with the signatures of the members/officers and
Chakraborty, Shekhar Kumar for the Respondent. certified copy of the merit list. This application remained
pending with the Public Information Officer of the Commission
The Judgment of the Court was delivered by for a considerable time that led to filing of an appeal by
respondent No.1 before the State Information Commission.
SWATANTER KUMAR, J. 1. Leave granted.
G G When the appeal came up for hearing, the State Information
2. The Bihar Public Service Commission (for short, ‘the Commission vide its order dated 30th April, 2009 had directed
Commission) published advertisement No.6 of 2000 dated 10th the Public Information Officer-cum-Officer on Special Duty of
May, 2000 in the local papers of the State of Bihar declaring the Commission that the information sought for be made
its intention to fill up the posts of ‘State Examiner of Questioned available and the case was fixed for 27th August, 2009 when
Documents’, in Police Laboratory in Crime Investigation H H the following order was passed :
HUSSAIN ABBAS RIZWI [SWATANTER KUMAR, J.]
“The applicant is present. A letter dated 12.08.2009 of the A A 6. Feeling aggrieved, respondent No.1 challenged the
Public Information Officer, Bihar Public Service judgment of the learned Single Judge before the Division Bench
Commission, Patna has been received whereby the of that Court by filing a letters patent appeal being LPA No.102
required paragraph-wise information which could be of 2010. The Division Bench, amongst others, noticed the
supplied, has been given to the applicant. Since the following contentions :
information which could be supplied has been given to the B B
applicant, the proceedings of the case are closed.” (i) that third party interest was involved in providing the
information asked for and, therefore, could properly be
4. At this stage, we may also notice that the Commission, denied in terms of Section 2(n) read with Sections 8(1)(j)
vide its letter dated 12th August, 2009, had furnished the and 11 of the Act.
information nearly to all the queries of respondent No.1. It also
C C (ii) that respondent No.1 (the applicant) was a mere
stated that no written test had been conducted and that the
name, designation and addresses of the members of the busybody and not a candidate himself and was attempting
Interview Board could not be furnished as they were not required to meddle with the affairs of the Commission needlessly.
to be supplied in accordance with the provisions of Section
7. The Division Bench took the view that the provisions of
8(1)(g) of the Act.
D D Section 8(1)(j) were not attracted in the facts of the case in
5. Aggrieved from the said order of the Information hand inasmuch as this provision had application in respect of
Commission dated 27th August, 2009, respondent No.1 law enforcement agency and for security purposes. Since no
challenged the same by filing a writ before the High Court of such consideration arose with respect to the affairs of the
Judicature at Patna. The matter came up for hearing before a Commission and its function was in public domain, reliance on
learned Judge of that Court, who, vide judgment dated 27th E the said provision for denying the information sought for was
E
November, 2009 made the following observations and not tenable in law. Thus, the Court in its order dated 20th
dismissed the writ petition : January, 2011 accepted the appeal, set aside the order of the
learned Single Judge and directed the Commission to
“If information with regard to them is disclosed, the secrecy communicate the information sought for to respondent No.1.
and the authenticity of the process itself may be The Court directed the Commission to provide the names of
F F the members of the Interview Board, while denying the
jeopardized apart from that information would be an
unwarranted invasion into privacy of the individual. disclosure of and providing photocopies of the papers
Restricting giving this information has a larger public containing the signatures and addresses of the members of the
purpose behind it. It is to maintain purity of the process of Interview Board.
selection. Thus, in view of specific provision in Section
8(1)(j), in my view, the information could not be demanded G G 8. The Commission challenging the legality and
as matter of right. The designated authority in that correctness of the said judgment has filed the present appeal
organization also did not consider it right to divulge the by way of special leave.
information in larger public interest, as provided in the said
9. The question that arises for consideration in the present
provision.”
H case is as to whether the Commission was duty bound to
H
disclose the names of the members of the Interview Board to A A protected under the Constitution is the right to privacy. This right
any person including the examinee. Further, when the is enshrined within the spirit of Article 21 of the Constitution.
Commission could take up the plea of exemption from Thus, the right to information has to be balanced with the right
disclosure of information as contemplated under Section 8 of to privacy within the framework of law.
the Act in this regard.
B 12. Where Section 3 of the Act grants right to citizens to
B
10. Firstly, we must examine the purpose and scheme of have access to information, there Section 4 places an obligation
this Act. For this purpose, suffice would it be to refer to the upon the public authorities to maintain records and provide the
judgment of this Court in the case of Namit Sharma v. Union prescribed information. Once an application seeking
of India [2012 (8) SCALE 593], wherein this Court has held as information is made, the same has to be dealt with as per
under : Sections 6 and 7 of the Act. The request for information is to
C C be disposed of within the time postulated under the provisions
“27. In terms of the Statement of Objects and Reasons of of Section 7 of the Act. Section 8 is one of the most important
the Act of 2002, it was stated that this law was enacted in provisions of the Act as it is an exception to the general rule of
order to make the government more transparent and obligation to furnish information. It gives the category of cases
accountable to the public. It was felt that in the present where the public authority is exempted from providing the
democratic framework, free flow of information for citizens D D information. To such exemptions, there are inbuilt exceptions
and non-Government institutions suffers from several under some of the provisions, where despite exemption, the
bottlenecks including the existing legal framework, lack of Commission may call upon the authority to furnish the
infrastructure at the grass root level and an attitude of information in the larger public interest. This shows the wide
secrecy within the Civil Services as a result of the old scope of these provisions as intended by the framers of law.
framework of rules. The Act was to deal with all such E E In such cases, the Information Commission has to apply its mind
aspects. The purpose and object was to make the whether it is a case of exemption within the provisions of the
government more transparent and accountable to the said section.
public and to provide freedom to every citizen to secure
access to information under the control of public 13. Right to information is a basic and celebrated
authorities, consistent with public interest, in order to F F fundamental/basic right but is not uncontrolled. It has its
promote openness, transparency and accountability in limitations. The right is subject to a dual check. Firstly, this right
administration and in relation to matters connected is subject to the restrictions inbuilt within the Act and secondly
therewith or incidental thereto.” the constitutional limitations emerging from Article 21 of the
Constitution. Thus, wherever in response to an application for
11. The scheme of the Act contemplates for setting out the disclosure of information, the public authority takes shelter
practical regime of right to information for citizens to secure G G
under the provisions relating to exemption, non-applicability or
access to information under the control of public authorities, in infringement of Article 21 of the Constitution, the State
order to promote transparency and accountability in the working Information Commission has to apply its mind and form an
of every public authority. It was aimed at providing free access opinion objectively if the exemption claimed for was sustainable
to information with the object of making governance more on facts of the case.
transparent and accountable. Another right of a citizen H H
14. Now, we have to examine whether the Commission is A A commission and decline to furnish such information. Another
a public authority within the meaning of the Act. The expression aspect of exercise of this right is that where the information
‘public authority’ has been given an exhaustive definition under asked for relates to third party information, the Commission is
section 2(h) of the Act as the Legislature has used the word required to follow the procedure prescribed under Section 11
‘means’ which is an expression of wide connotation. Thus, of the Act.
‘public authority’ is defined as any authority or body or institution B B
of the Government, established or constituted by the 17. Before the High Court, reliance had been placed upon
Government which falls in any of the stated categories under Section 8(1)(j) and Section 11 of the Act. On facts, the
Section 2(h) of the Act. In terms of Section 2(h)(a), a body or controversy in the present case falls within a very narrow
an institution which is established or constituted by or under the compass. Most of the details asked for by the applicant have
Constitution would be a public authority. Public Service already been furnished. The dispute between the parties
C C related only to the first query of the applicant, that is, with regard
Commission is established under Article 315 of the Constitution
of India and as such there cannot be any escape from the to disclosure of the names and addresses of the members of
conclusion that the Commission shall be a public authority within the Interview Board.
the scope of this section.
18. On behalf of the Commission, reliance was placed
15. Section 2(f) again is exhaustive in nature. The D D upon Section 8(1)(j) and Section 11 of the Act to contend that
Legislature has given meaning to the expression ‘information’ disclosure of the names would endanger the life of the
and has stated that it shall mean any material in any form members of the interview board and such disclosure would also
including papers, samples, data material held in electronic form, cause unwarranted invasion of the privacy of the interviewers.
etc. Right to information under Section 2(j) means the ‘right to Further, it was contended that this information related to third
information’ accessible under this Act which is held by or under E E party interest. The expression ‘third party’ has been defined in
the control of any public authority and includes the right to Section 2(n) of the Act to mean a person other than the citizen
inspection of work, documents, records, taking notes, extracts, making a request for information and includes a public authority.
taking certified sample of materials, obtaining information in the For these reasons, they were entitled to the exemption
form of diskettes, floppies and video cassettes, etc. The right contemplated under Section 8(1)(j) and were not liable to
sought to be exercised and information asked for should fall F F disclose the required information. It is also contended on behalf
within the scope of ‘information’ and ‘right to information’ as of the Commission that the Commission was entitled to
defined under the Act. exemption under Sections 8(1)(e) and 8(1)(g) read together.
16. Thus, what has to be seen is whether the information 19. On the contrary, the submission on behalf of the
sought for in exercise of right to information is one that is applicant was that it is an information which the applicant is
G G entitled to receive. The Commission was not entitled to any
permissible within the framework of law as prescribed under
the Act. If the information called for falls in any of the categories exemption under any of the provisions of Section 8, and
specified under Section 8 or relates to the organizations to therefore, was obliged to disclose the said information to the
which the Act itself does not apply in terms of section 24 of the applicant.
Act, the public authority can take such stand before the
H H 20. In the present case, we are not concerned with the
correctness or otherwise of the method adopted for selection A A term ‘fiduciary relationship’ is used to describe a situation or
of the candidates. Thus, the fact that no written examination was transaction where one person places complete confidence in
held and the selections were made purely on the basis of viva another person in regard to his affairs, business or
voce, one of the options given in the advertisement itself, does transactions. This aspect has been discussed in some detail
not arise for our consideration. We have to deal only with the in the judgment of this Court in the case of Central Board of
plea as to whether the information asked for by the applicant B B Secondary Education (supra). Section 8(1)(e), therefore,
should be directed to be disclosed by the Commission or carves out a protection in favour of a person who possesses
whether the Commission is entitled to the exemption under the information in his fiduciary relationship. This protection can be
stated provisions of Section 8 of the Act. negated by the competent authority where larger public interest
warrants the disclosure of such information, in which case, the
21. Section 8 opens with the non obstante language and
is an exception to the furnishing of information as is required
C C authority is expected to record reasons for its satisfaction.
Another very significant provision of the Act is 8(1)(j). In terms
under the relevant provisions of the Act. During the course of of this provision, information which relates to personal
the hearing, it was not pressed before us that the Commission information, the disclosure of which has no relationship to any
is entitled to the exemption in terms of Section 8(1)(j) of the Act. public activity or interest or which would cause unwarranted
In view of this, we do not propose to discuss this issue any invasion of the privacy of the individual would fall within the
further nor would we deal with the correctness or otherwise of D D
exempted category, unless the authority concerned is satisfied
the impugned judgment of the High Court in that behalf. that larger public interest justifies the disclosure of such
information. It is, therefore, to be understood clearly that it is a
22. Section 8(1)(e) provides an exemption from furnishing
statutory exemption which must operate as a rule and only in
of information, if the information available to a person is in his
exceptional cases would disclosure be permitted, that too, for
fiduciary relationship unless the competent authority is satisfied E E reasons to be recorded demonstrating satisfaction to the test
that larger public interest warrants the disclosure of such
of larger public interest. It will not be in consonance with the
information. In terms of Section 8(1)(g), the public authority is
spirit of these provisions, if in a mechanical manner, directions
not obliged to furnish any such information the disclosure of
are passed by the appropriate authority to disclose information
which would endanger the life or physical safety of any person
which may be protected in terms of the above provisions. All
or identify the source of information or assistance given in F F information which has come to the notice of or on record of a
confidence for law enforcement and security purposes. If the
person holding fiduciary relationship with another and but for
concerned public authority holds the information in fiduciary
such capacity, such information would not have been provided
relationship, then the obligation to furnish information is
to that authority, would normally need to be protected and would
obliterated. But if the competent authority is still satisfied that
not be open to disclosure keeping the higher standards of
in the larger public interest, despite such objection, the G G integrity and confidentiality of such relationship. Such exemption
information should be furnished, it may so direct the public
would be available to such authority or department.
authority. The term ‘fiduciary’ refers to a person having a duty
to act for the benefit of another, showing good faith and 23. The expression ‘public interest’ has to be understood
condour, where such other person reposes trust and special in its true connotation so as to give complete meaning to the
confidence in the person owing or discharging the duty. The
H H relevant provisions of the Act. The expression ‘public interest’
A A
must be viewed in its strict sense with all its exceptions so as rights emerge from the constitutional values under the
to justify denial of a statutory exemption in terms of the Act. In Constitution of India.
its common parlance, the expression ‘public interest’, like
‘public purpose’, is not capable of any precise definition . It 25. First of all, the Court has to decide whether in the facts
does not have a rigid meaning, is elastic and takes its colour of the present case, the Commission holds any fiduciary
from the statute in which it occurs, the concept varying with time B B relationship with the examinee or the interviewers. Discussion
and state of society and its needs. [State of Bihar v. on this question need not detain us any further as it stands fully
Kameshwar Singh (AIR 1952 SC 252)]. It also means the answered by a judgment of this Court in the case of Central
general welfare of the public that warrants recommendation and Board of Secondary Education & Anr. v. Aditya
protection; something in which the public as a whole has a Bandopadhyay & Ors. [(2011) 8 SCC 497] wherein the Court
stake [Black’s Law Dictionary (Eighth Edition)]. C C held as under :
24. The satisfaction has to be arrived at by the authorities “40. There are also certain relationships where both the
objectively and the consequences of such disclosure have to parties have to act in a fiduciary capacity treating the other
be weighed with regard to circumstances of a given case. The as the beneficiary. Examples of these are: a partner vis-
decision has to be based on objective satisfaction recorded D D à-vis another partner and an employer vis-à-vis employee.
for ensuring that larger public interest outweighs unwarranted An employee who comes into possession of business or
invasion of privacy or other factors stated in the provision. trade secrets or confidential information relating to the
Certain matters, particularly in relation to appointment, are employer in the course of his employment, is expected to
required to be dealt with great confidentiality. The information act as a fiduciary and cannot disclose it to others. Similarly,
may come to knowledge of the authority as a result of disclosure if on the request of the employer or official superior or the
E E
by others who give that information in confidence and with head of a department, an employee furnishes his personal
complete faith, integrity and fidelity. Secrecy of such information details and information, to be retained in confidence, the
shall be maintained, thus, bringing it within the ambit of fiduciary employer, the official superior or departmental head is
capacity. Similarly, there may be cases where the disclosure expected to hold such personal information in confidence
has no relationship to any public activity or interest or it may as a fiduciary, to be made use of or disclosed only if the
F F employee’s conduct or acts are found to be prejudicial to
even cause unwarranted invasion of privacy of the individual.
All these protections have to be given their due implementation the employer.
as they spring from statutory exemptions. It is not a decision
simpliciter between private interest and public interest. It is a 41. In a philosophical and very wide sense, examining
matter where a constitutional protection is available to a person bodies can be said to act in a fiduciary capacity, with
with regard to the right to privacy. Thus, the public interest has G G reference to the students who participate in an
to be construed while keeping in mind the balance factor examination, as a Government does while governing its
between right to privacy and right to information with the citizens or as the present generation does with reference
purpose sought to be achieved and the purpose that would be to the future generation while preserving the environment.
served in the larger public interest, particularly when both these But the words “information available to a person in his
H H
fiduciary relationship” are used in Section 8(1)(e) of the RTI A A in regard to the process of holding examination in the
Act in its normal and well-recognised sense, that is, to refer context of examining whether it amounts to “service” to a
to persons who act in a fiduciary capacity, with reference consumer, in Bihar School Examination Board v. Suresh
to a specific beneficiary or beneficiaries who are to be Prasad Sinha in the following manner: (SCC p. 487, paras
expected to be protected or benefited by the actions of the 11-13)
fiduciary—a trustee with reference to the beneficiary of the B B
trust, a guardian with reference to a minor/physically infirm/ “11. … The process of holding examinations,
mentally challenged, a parent with reference to a child, a evaluating answer scripts, declaring results and
lawyer or a chartered accountant with reference to a client, issuing certificates are different stages of a single
a doctor or nurse with reference to a patient, an agent with statutory non-commercial function. It is not possible
reference to a principal, a partner with reference to another to divide this function as partly statutory and partly
C C
partner, a Director of a company with reference to a administrative.
shareholder, an executor with reference to a legatee, a
12. When the Examination Board conducts an
Receiver with reference to the parties to a lis, an employer
examination in discharge of its statutory function, it
with reference to the confidential information relating to the
does not offer its ‘services’ to any candidate. Nor
employee, and an employee with reference to business D D does a student who participates in the examination
dealings/transaction of the employer. We do not find that
conducted by the Board, hire or avail of any service
kind of fiduciary relationship between the examining body
from the Board for a consideration. On the other
and the examinee, with reference to the evaluated answer
hand, a candidate who participates in the
books, that come into the custody of the examining body.
examination conducted by the Board, is a person
42. The duty of examining bodies is to subject the E E who has undergone a course of study and who
candidates who have completed a course of study or a requests the Board to test him as to whether he has
period of training in accordance with its curricula, to a imbibed sufficient knowledge to be fit to be
process of verification/examination/testing of their declared as having successfully completed the said
knowledge, ability or skill, or to ascertain whether they can course of education; and if so, determine his
be said to have successfully completed or passed the F F position or rank or competence vis-à-vis other
course of study or training. Other specialised examining examinees. The process is not, therefore, availment
bodies may simply subject the candidates to a process of of a service by a student, but participation in a
verification by an examination, to find out whether such general examination conducted by the Board to
person is suitable for a particular post, job or assignment. ascertain whether he is eligible and fit to be
An examining body, if it is a public authority entrusted with G considered as having successfully completed the
G
public functions, is required to act fairly, reasonably, secondary education course. The examination fee
uniformly and consistently for public good and in public paid by the student is not the consideration for
interest. availment of any service, but the charge paid for the
privilege of participation in the examination.
43. This Court has explained the role of an examining body
H H 13. … The fact that in the course of conduct of the
examination, or evaluation of answer scripts, or A A 27. In CBSE case (supra), this Court had clearly stated the
furnishing of marksheets or certificates, there may view that an examiner who examines the answer sheets holds
be some negligence, omission or deficiency, does the relationship of principal and agent with the examining body.
not convert the Board into a service provider for a Applying the same principle, it has to be held that the
consideration, nor convert the examinee into a interviewers hold the position of an ‘agent’ vis-a-vis the
consumer….” B B examining body which is the ‘principal’. This relationship per
se is not relatable to any of the exemption clauses but there
It cannot therefore be said that the examining body is in a are some clauses of exemption, the foundation of which is not
fiduciary relationship either with reference to the examinee a particular relationship like fiduciary relationship. Clause
who participates in the examination and whose answer 8(1)(g) can come into play with any kind of relationship. It
books are evaluated by the examining body.
C C requires that where the disclosure of information would
endanger the life or physical safety of any person or identify the
XXX XXX XXX
source of information or assistance given in confidence for law
49. The examining body entrusts the answer books to an enforcement or security purposes, the information need not be
examiner for evaluation and pays the examiner for his provided. The High Court has rejected the application of Section
expert service. The work of evaluation and marking the D 8(1)(g) on the ground that it applies only with regard to law
D
answer book is an assignment given by the examining enforcement or security purposes and does not have general
body to the examiner which he discharges for a application. This reasoning of the High Court is contrary to the
consideration. Sometimes, an examiner may assess very language of Section 8(1)(g). Section 8(1)(g) has various
answer books, in the course of his employment, as a part clauses in itself.
of his duties without any specific or special remuneration.
E E 28. Now, let us examine the provisions of Section 8(1)(g)
In other words, the examining body is the “principal” and
the examiner is the “agent” entrusted with the work, that with greater emphasis on the expressions that are relevant to
is, the evaluation of answer books. Therefore, the the present case. This section concerns with the cases where
examining body is not in the position of a fiduciary with no obligation is cast upon the public authority to furnish
reference to the examiner.” information, the disclosure of which would endanger (a) the life
F F (b) physical safety of any person. The legislature, in its wisdom,
(emphasis supplied) has used two distinct expressions. They cannot be read or
construed as being synonymous. Every expression used by the
26. We, with respect, would follow the above reasoning of Legislature must be given its intended meaning and, in fact, a
the Bench and, thus, would have no hesitation in holding that purposeful interpretation. The expression ‘life’ has to be
in the present case, the examining body (the Commission), is
G G construed liberally. ‘Physical safety’ is a restricted term while
in no fiduciary relationship with the examinee (interviewers) or life is a term of wide connotation. ‘Life’ includes reputation of
the candidate interviewed. Once the fiduciary relationship is not an individual as well as the right to live with freedom. The
established, the obvious consequence is that the Commission expression ‘ life’ also appears in Article 21 of the Constitution
cannot claim exemption as contemplated under Section 8(1)(e) and has been provided a wide meaning so as to inter alia
of the Act. The question of directing disclosure for a larger
public interest, therefore, would not arise at all. H H include within its ambit the right to live with dignity, right to
shelter, right to basic needs and even the right to reputation. A A consequences that the interviewers or the members of the
The expression life under section 8(1(g) the Act, thus, has to interview board would be exposed to in the event their names
be understood in somewhat similar dimensions. The term and addresses or individual marks given by them are directed
‘endanger’ or ‘endangerment’ means the act or an instance of to be disclosed. Firstly, the members of the Board are likely to
putting someone or something in danger; exposure to peril or be exposed to danger to their lives or physical safety. Secondly,
such situation which would hurt the concept of life as understood B B it will hamper effective performance and discharge of their
in its wider sense [refer Black’s Law Dictionary (Eighth duties as examiners. This is the information available with the
Edition)]. Of course, physical safety would mean the likelihood examining body in confidence with the interviewers. Declaration
of assault to physical existence of a person. If in the opinion of of collective marks to the candidate is one thing and that, in
the concerned authority there is danger to life or possibility of fact, has been permitted by the authorities as well as the High
danger to physical safety, the State Information Commission C C Court. We see no error of jurisdiction or reasoning in this
would be entitled to bring such case within the exemption of regard. But direction to furnish the names and addresses of the
Section 8(1)(g) of the Act. The disclosure of information which interviewers would certainly be opposed to the very spirit of
would endanger the life or physical safety of any person is one Section 8(1)(g) of the Act. CBSE case (supra) has given
category and identification of the source of information or sufficient reasoning in this regard and at this stage, we may
assistance given in confidence for law enforcement or security D refer to paragraphs 52 and 53 of the said judgment which read
D
purposes is another category. The expression ‘for law as under :
enforcement or security purposes’ is to be read ejusdem
generis only to the expression ‘assistance given in confidence’ “52. When an examining body engages the services of an
and not to any other clause of the section. On the plain reading examiner to evaluate the answer books, the examining
of Section 8(1)(g), it becomes clear that the said clause is body expects the examiner not to disclose the information
E E regarding evaluation to anyone other than the examining
complete in itself. It cannot be said to have any reference to
the expression ‘assistance given in confidence for law body. Similarly the examiner also expects that his name
enforcement or security purposes’. Neither the language of the and particulars would not be disclosed to the candidates
Section nor the object of the Section requires such whose answer books are evaluated by him. In the event
interpretation. It would not further the cause of this section. of such information being made known, a disgruntled
Section 8 attempts to provide exemptions and once the F F examinee who is not satisfied with the evaluation of the
language of the Section is unambiguous and squarely deals answer books, may act to the prejudice of the examiner
with every situation, there is no occasion for the Court to by attempting to endanger his physical safety. Further, any
frustrate the very object of the Section. It will amount to apprehension on the part of the examiner that there may
misconstruing the provisions of the Act. The High Court though be danger to his physical safety, if his identity becomes
has referred to Section 8(1)(j) but has, in fact, dealt with the G G known to the examinees, may come in the way of effective
language of Section 8(1)(g). The reasoning of the High Court, discharge of his duties. The above applies not only to the
therefore, is neither clear in reference to provision of the Section examiner, but also to the scrutiniser, co-ordinator and head
nor in terms of the language thereof. examiner who deal with the answer book.
29. Now, the ancillary question that arises is as to the 53. The answer book usually contains not only the signature
H H
and code number of the examiner, but also the signatures A A as a defence. We are unable to accept this reasoning of the
and code number of the scrutiniser/co-ordinator/head High Court. Suffice it to note that the reasoning of the High
examiner. The information as to the names or particulars Court is not in conformity with the principles stated by this Court
of the examiners/co-ordinators/scrutinisers/head in the CBSE case (supra). The transparency that is expected
examiners are therefore exempted from disclosure under to be maintained in such process would not take within its ambit
Section 8(1)(g) of the RTI Act, on the ground that if such B B the disclosure of the information called for under query No.1 of
information is disclosed, it may endanger their physical the application. Transparency in such cases is relatable to the
safety. Therefore, if the examinees are to be given access process where selection is based on collective wisdom and
to evaluated answer books either by permitting inspection collective marking. Marks are required to be disclosed but
or by granting certified copies, such access will have to disclosure of individual names would hardly hold relevancy either
be given only to that part of the answer book which does C C to the concept of transparency or for proper exercise of the right
not contain any information or signature of the examiners/ to information within the limitation of the Act.
co-ordinators/scrutinisers/head examiners, exempted from
disclosure under Section 8(1)(g) of the RTI Act. Those 31. For the reasons afore-stated, we accept the present
portions of the answer books which contain information appeal, set aside the judgment of the High Court and hold that
regarding the examiners/co-ordinators/scrutinisers/head the Commission is not bound to disclose the information asked
D D for by the applicant under Query No.1 of the application.
examiners or which may disclose their identity with
reference to signature or initials, shall have to be removed,
R.P. Appeal allowed.
covered, or otherwise severed from the non-exempted part
of the answer books, under Section 10 of the RTI Act.”
30. The above reasoning of the Bench squarely applies E

to the present case as well. The disclosure of names and
addresses of the members of the Interview Board would ex
facie endanger their lives or physical safety. The possibility of
a failed candidate attempting to take revenge from such
persons cannot be ruled out. On the one hand, it is likely to F
expose the members of the Interview Board to harm and, on
the other, such disclosure would serve no fruitful much less any
public purpose. Furthermore, the view of the High Court in the
judgment under appeal that element of bias can be traced and
would be crystallized only if the names and addresses of the G
examiners/interviewers are furnished is without any substance.
The element of bias can hardly be co-related with the disclosure
of the names and addresses of the interviewers. Bias is not a
ground which can be considered for or against a party making
an application to which exemption under Section 8 is pleaded H
PARSHAVANATH CHARITABLE TRUST & ORS. A A years 2008-2009 and 2009-2010, albeit to operate the
v. College only from the approved location – Subsequently,
ALL INDIA COUNCIL FOR TECH. EDU & ORS. approval withdrawn on 7.1.2011 – Held: It is the requirement
(Civil Appeal No. 9048 of 2012 etc.) of law that there should be strict adherence to the time
schedule for grant of approval as well as for admissions without
DECEMBER 13, 2012
B B exception – The Schedule to the Regulations has statutory
[A.K. PATNAIK AND SWATANTER KUMAR, JJ.] backing – Its adherence is mandatory and not directory – In
the instant case, there has been apparent error in exercise
All India Council for Technical Education Act, 1987: of power and discretion by the AICTE – Admittedly, the
appellant-college had been carrying on its education courses
s.10(1)(k) of the Act and clause 9.22 of the Handbook of C C since the year 1994 – It had submitted its application for
Approval Process – Shifting of Engineering College – transfer to the new site on 24.5.2008 – There is nothing on
Requirements to be complied with – Held: Clause 9.22 of the record to show that this application was dealt with either by the
Handbook of Approval Process issued by AICTE provides a Regional Office or by the main office of the AICTE – Granting
complete procedure for change of location and the same is of approval for the academic years 2008-09 and 2009-10
permissible subject to compliance with the procedure – In the D particularly when the Expert Committee is stated to have
D
instant case, appellant-college had shifted to the new visited the premises on 26.6.2008 and found inadequacies
premises without approval of AICTE and without ‘No Objection in the report, is certainly a lapse on the part of the AICTE
Certificate’ from the State Government and Directorate of which cannot be ignored by the Court as it had far-reaching
Technical Education – Undisputedly, the appellant-college consequences including placing the career of the students
had no title to the property and, in fact, it did not even have a admitted during these two years in jeopardy – Thus, cost of
E E Rs.50,000/- is imposed upon the AICTE for such
registered lease deed in its favour to create some
recognizable interest in the property in question – High Court irresponsible working – The costs would be recovered from
in its judgment had specifically noticed the defects pointed the salary of the erring officials/officers involved in the
out by the Expert Committee – View of High Court that the erroneous approach – Admission schedule and Schedule for
College had failed to comply with requirements for grant of granting/refusal of approval modified and directions issued
approval and had shifted to the new site without approval of F F accordingly – All India Council for Technical Education (Grant
the AICTE and other authorities concerned cannot be faulted of Approvals for Staffing New Technical Institution,
with and does not call for any interference – In the Introduction of Course and Programmes and Approval of
circumstances, withdrawal of approval by AICTE can also not Intake Capacity) Regulations, 1994.
be interfered with.
G G The appellant Trust started an Engineering College
ss. 10 and 23 of the Act and Regulation 8(15) of 1994 at the premises bearing Survey No. 27, from the academic
Regulations – Application for grant of approval to shifting of year 1994-95 after obtaining approval from the authorities
Engineering College – AICTE granting approval for academic concerned. On 24.5.2008, the Trust moved an application
to the Regional Office of the All India Council for
1057 H H Technical Education (AICTE) seeking its permission to
PARSHAVANATH CHARITABLE TRUST v. ALL INDIA 1059 1060 SUPREME COURT REPORTS [2012] 11 S.C.R.
COUNCIL FOR TECH. EDU
shift the College to new premises; it also applied for A A 1.2. Section 10(1)(k) of the All India Council for
issuance of a “No Objection Certificate”. However, in May Technical Education Act, 1987 (AICTE Act) empowers the
2008, the Trust shifted the College to the new site. On AICTE to “grant approval for starting new technical
30.6.2008, the AICTE granted extension of approval to the institutions and for introduction of new courses or
College for academic years 2008-2011 with an intake programmes in consultation with the agencies
capacity of 280 students and with a specific assertion that B B concerned”. It is important to see that the AICTE is
the institution would operate only from the approved empowered to inspect or cause to inspect any technical
location. By letter dated 20.8.2009 AICTE granted institution under clause (p) of sub-s. (1) of s. 10 without
approval to the College with increased intake from 280 any reservation whatsoever. However, when it comes to
to 360 students for the academic year 2009. On 18.5.2010 the question of universities, it is confined and limited to
the AICTE issued a notice to the College that it had shifted C C ascertaining the financial needs or its standards of
to another location without obtaining prior approval. The teaching, examination and research. The inspection may
College was also not included in the Centralised be made or caused to be made of any department or
Admission Process by the State Government. The departments only and that too, in such manner as may
appellant filed a writ petition before the High Court, which be prescribed, as envisaged in s. 11 of the AICTE Act.
directed that the College be allowed to participate in CAP [para 23] [1079-B-E]
D D
in the second round. On 7.1.2011, the AICTE passed an
order withdrawing the approval granted to the College for Adarsh Shiksha Mahavidyalaya v. Subhash Rahangdale
the academic year 2008-2009. The writ petition filed by (2012) 2 SCC 425; State of Tamil Nadu v. Adhiyaman
the appellant having been dismissed by the High Court, Educational & Research Institute 1995 (2) SCR 1075 = (1995)
it filed the appeals. Two students also filed another 4 SCC 104; and Bharathidasan University v. All India
appeal by seeking leave of the Court. E E Council for Technical Education (2001) 8 SCC 676 – referred
to.
Dismissing the appeals, the Court
1.3. The consistent view of this Court has been that
HELD: 1.1. The AICTE is a specialized body where both Parliament and State Legislature have the
constituted for the purpose of bringing uniformity in F F power to legislate, the Central Act shall take precedence
technical education all over the country and to ensure in the matters which are covered by such legislations and
that the institutions which are recognised by it are the State enactments shall pave way for such legislations
possessed of complete infrastructure, staff and other to the extent they are in conflict or repugnant. As per the
facilities and are capable of maintaining education established canons of law, primacy of the Central Act is
standards for imparting technical education. [para 25] undisputable which necessarily implies primacy of AICTE
G G
[1080-B-C] in the field of technical education. The AICTE is the
authority constituted under the Central Act with the
Jaya Gokul Educational Trust v. Commissioner & responsibility of maintaining operational standards and
Secretary to Government Higher Education Department, judging the infrastructure and facilities available for
Thiruvanathapuram, Kerala State and Anr. 2000 (2) imparting professional education. It shall take
SCR 1234 = (2000) 5 SCC 231 - referred to. H H
precedence over the opinion of the State as well as that A A Ranjan Purohit and Ors. v. Rajasthan University of
of the University. It needs to be clarified that grant of Health Science and Ors. (2012) 8 SCALE 71; Medical
approval by the State and affiliation by the University for Council of India v. Madhu Singh 2002 (2) Suppl. SCR 228 =
increased intake of seats or commencement of new (2002) 7 SCC 258 - referred to.
college should not be repugnant to the conditions of
approval/recommendation granted by the AICTE. [para B 2.2. Compliance with the conditions for approval as
B
27] [1083-E-H; 1084-A-B-C] well as regulations and provisions of the AICTE Act is an
unexceptionable condition. Clause 9.22 of the Handbook
1.4. It is also a settled principle that the regulations of Approval Process issued by the AICTE provides a
framed by the central authorities such as the AICTE have complete procedure for change of location, station and
the force of law and are binding on all concerned. Once the same is permissible subject to compliance with the
C C procedure. It contemplates obtaining of ‘No Objection
approval is granted or declined by such expert body, the
courts would normally not substitute their view in this Certificate’ from the concerned State Government or UT
regard. Such expert views would normally be accepted Administration and affiliating body. The same clause also
by the court unless the powers vested in such expert requires submission of the land documents in original
body are exercised arbitrarily, capriciously or in a manner and clearly provides that the same may be a registered
impermissible under the Regulations and the AICTE Act. D D sale deed, irrevocable government lease for a minimum
[para 28] [1084-D-F] period of 30 years, etc. by the concerned authority of the
Government. [para 31] [1087-D-F]
AICTE v. Surinder Kumar Dhawan 2009 (3) SCR 859 =
(2009) 11 SCC 726; Unni Krishnan, J.P. and Others etc. etc. 2.3. There is no dispute as to the fact that the
vs. State of Andhra Pradesh and Others etc. etc. (1993) 1 SCC E E appellant-college had shifted to the new premises
645 - referred to. without approval of the AICTE and without ‘No Objection
Certificate’ from the State Government and Directorate of
2.1. Right to establish an educational institution does Technical Education. Undisputedly, the appellant-college
not carry with it the right to recognition or the right to had no title to the property and, in fact, it did not even
affiliation. Grant of recognition or affiliation is neither a
matter of course nor is it a formality. Admission to the
F F have a registered lease deed in its favour to create some
recognizable interest in the property in question. The
privileges of a University is a power to be exercised with High Court in its judgment had specifically noticed the
great care keeping in view the interest of the public at defects pointed out by the Expert Committee. [para 30]
large and the nation. Recognition has to be as per [1086-F-G; 1087-A-B]
statutorily prescribed conditions and their strict
adherence by all concerned. These conditions of G G 2.4. Even the approvals granted for the academic
recognition and the duly notified directions controlling years 2008-09 and 2009-10 had clearly stated that the
the admission process are to be construed and applied institution shall operate only from the approved location
stricto sensu. They cannot be varied from case to case. and it shall not open any campus/executive centres
[para 29] [1086-C-E] directly or in collaboration with any other institution/
H H university for the purpose of imparting technical
education without obtaining prior approval from the A A Intake Capacity) Regulations, 1994. Schedule to these
AICTE. The approval for these academic years was regulations has statutory backing. Thus, its adherence is
granted to the College being run at Survey Nos.27 and mandatory and not directory. The authorities concerned,
not at any other place. There is no occasion to take it as particularly the AICTE, should ensure proper and timely
a deemed and/or implied approval for the new site of the action upon the applications submitted to it. For better
appellant-college. Approval can hardly be inferred. It is a B B administration, the AICTE should also state the time
matter of fact and the authorities are expected to pass within which the deficiencies/ defects should be removed
appropriate orders in accordance with law and upon due by the applicant. [para 38-40] [1089-F-G; 1091-C-D, F]
diligence and in compliance with the procedure
prescribed under law. [para 32-33] [1088-B-D] 3.2. Admission schedule should be declared once
and for all rather than making it a yearly declaration.
2.5. Thus, the view of the High Court that the College C C Consistency and smoothness in admission process
had failed to comply with the requirements for grant of would demand and require that there is a fixed and
approval and had shifted to the new site without approval unaltered time schedule provided for admission to the
of the AICTE and other authorities concerned cannot be colleges so that the students know with certainty and well
faulted with and does not call for any interference. There in advance the admission schedule that is to be followed
being no compliance to the legal requirements and D D and on the basis of which they are to have their choice
binding conditions of recognition, the withdrawal of of college or course exercised. It cannot be appreciated
approval by the AICTE can also be not interfered with. that once the academic session begins on 1st August,
[para 34] [1088-E-F] then as to why should admission be granted upto 30th
August of the year, particularly when, as per the terms of
2.6. In the circumstances, the appellant college could E E the Schedule, beyond or after 30th April, AICTE will not
not have been included in the counselling for the current issue any approval for commencement of new course for
year. Even otherwise, the last date for admission was additional intakes. The Schedule, thus, introduces an
30.8.2012, which is since over and there is no reason element of arbitrariness and may cause prejudice to the
whatsoever to extend this date. Further, the Court is students who might miss their classes for a period of one
required to strictly construe and comply with the F F month without any justification. Thus, it is required that
schedule for admission. [para 35] [1088-G-H; 1089-A] the Schedule be modified to bring it in line with the
Schedule for approval as well as to prevent inequalities,
3.1. It is the requirement of law that there should be
arbitrariness and prejudice from affecting the students in
strict adherence to the time schedule for grant of
relation to their academic courses. The order granting or
approval as well as for admissions without exception. In
G G refusing approval, thus, should positively be passed by
exercise of the powers vested in the AICTE, under sub-
10th April of the relevant year. The appeal should be filed
s. (1) of s.23 of the AICTE Act, it had made regulations
within one week and the Appellate Committee should hear
namely the All India Council for Technical Education
the appeal and decide the same by 30th April of the
(Grant of Approvals for Staffing New Technical Institution,
relevant year. The University should grant/decline
Introduction of Course and Programmes and Approval of
H H
approval/affiliation by 15th May of the relevant year. A A is the case of the appellant that on 26.6.2008, the Expert
Advertisement should be issued and entrance Committee visited the new site of the appellant-college
examination conducted positively by the end of the where the college was being run. Thereafter approval for
month of May. The appropriate Schedule has been given the two academic years was granted. Strangely, on the
in the judgment. The admission to academic courses basis of the same report, on 18.5.2010 the show cause
should start, as proposed, by 1st August of the relevant B B notice was issued and again the Expert Committee is
year. The seats remaining vacant should again be duly stated to have visited the college premises on 16.7.2010
notified and advertised. All seats should be filled leading to the issuance firstly of the rejection of the seats
positively by 15th August after which there shall be no and, secondly, of withdrawal/cancellation of approval on
admission, whatever be the reason or ground. [para 42- 7.1.2011. [para 46] [1096-G-H; 1097-A-D]
44] [1092-F-H; 1093-A; 1094-D-H; 1096-D] C C 3.5. Granting of approval for the academic years 2008-
3.3. The admission Schedule as proposed is in 09 and 2009-10 particularly when the Expert Committee
conformity with the affiliation/ recognition schedule. They is stated to have visited the premises on 26.6.2008 and
both can co-exist. Thus, these admission dates are found inadequacies in the report, is certainly a lapse on
approved and it is declared to be the law which shall be the part of the AICTE which cannot be ignored by the
strictly adhered to by all concerned and none of the D D Court as it had far-reaching consequences including
authorities shall have the power or jurisdiction to vary placing the career of the students admitted during these
these dates of admission. Certainty in this field is bound two years in jeopardy. Shifting of students is a
to serve the ends of fair, transparent and judicious consequential order and is in the interest of the students.
method of grant of admission and commencement of the Even though the High Court has directed allocation of
technical courses. Any variation is bound to adversely E E these students in other colleges, their academic course
affect the maintenance of higher standards of education certainly stands adversely affected and disturbed, for
and systemic and proper completion of courses. [para which the AICTE is responsible. In this regard, the Court
45] [1096-E-G] cannot overlook such apparent erroneous approach and
default which can be for anything but bona fide reasons.
3.4. There has been apparent error in exercise of F F Thus, cost of Rs.50,000/- is imposed upon the AICTE for
power and discretion by the AICTE. Admittedly, the such irresponsible working. The costs would be payable
appellant-college had been carrying on its education to the Supreme Court Legal Services Committee and
courses since the year 1994. It had submitted its would be recovered from the salary of the erring officials/
application for transfer to the new site on 24.5.2008. There officers involved in this erroneous approach. [para 34 and
is nothing on record to show that this application was G G 47] [1088-F-G; 1097-D-G]
dealt with either by the Regional Office or by the main
office of the AICTE. Having known the fact that the 4.2. It is directed that:
college had shifted to a new site, the AICTE accorded
approval for the academic years 2008-09 and 2009-10 for (i) Both grant/refusal of approval and admission
which again there is no justification placed on record. It schedule shall be strictly adhered to by all the
H H
authorities concerned including the AICTE, A A year in all respects. For this purpose, if extra classes
University, State Government and any other authority are required to be held, the concerned institute, the
directly or indirectly connected with the grant of University and the AICTE are directed to ensure
approval and admission; holding of such extra classes; and
(ii) No person or authority shall have the power or (vi) If the appellate authority decides the matter prior
B B
jurisdiction to vary the Schedule; to 30th April of the concerned year and grants
approval to a college, then alone such institution will
(iii) While dealing with the application for grant of be permitted to be included in the list of colleges to
approval to new colleges or additional seats, the which admissions are to be made and not otherwise.
AICTE shall inform the applicant within three weeks Thus, even if the appellate authority grants approval
from the date of receipt of its application or date of C C after 30th April, it will not be operative for the current
inspection, as the case may be, the shortcomings/ academic year. All colleges which have been granted
defects, who, in turn, shall remove such approval/affiliation by 10th or 30th April, as the case
shortcomings/defects within 15 days from the date may be, shall alone be included in the brochure/
of such communication or within such period as the advertisement/website for the purpose of admission
AICTE may grant and re-submit its papers without D D and none thereafter. [para 48] [1098-A-H; 1099-A-E]
default. The process of grant of approval has to be
transparent and fair. The AICTE or the University Case Law Reference:
concerned or State Government shall take
(2012) 2 SCC 425 referred to Para 24
disciplinary action against the person who commits
default in adherence to the Schedule and E E 1995 (2) SCR 1075 referred to Para 24
performance of his duties in accordance therewith;
2001 (3) Suppl. SCR 253 referred to Para 24
(iv) The reports submitted by the Expert Committee
2000 (2) SCR 1234 referred to Para 26
visiting the college should be unambiguous and
clear, and should bear the date and time of 2009 (3) SCR 859 referred to Para 28
inspection and should be sufficiently comprehensive F F
and inspection be conducted in the presence of a (1993) 1 SCC 645 referred to para 29
representative of the institute; (2012) 8 SCALE 71 referred to para 29
(v) The students of the appellant-college shall be re- 2002 (2) Suppl. SCR 228 referred to para 29
allocated to the recognized and affiliated colleges in G G
terms of the judgment of the High Court; and the CIVIL APPELLATE JURISDICTION : Civil Appeal No.
AICTE and the University concerned shall ensure 9048 of 2012.
that the academic courses of these students are
From the Judgment & Order dated 22.8.2012 of the High
completed within the balance period of the academic
Court of Judicature at Bombay in Writ Petition No. 460 of 2011.
H H
WITH A A 1994 with the intake capacity of 140 students for academic year
C.A. No. 9047 of 2012. 1994-95. This college was running at the premises being Survey
No.27 (part) at Kasarvadavali, Ghodbunder Road in the district
C.A. Sundaram, Sunil Gupta, Hemant Mehta, Jatin Zaveri, of Thane. The annual approvals by the All India Council for
Shiv Sagar Tiwari, Neel Kamal Mishra for the Appellants. Technical Education (for short, the ‘AICTE’) continued till the
B B year 2008. On 29th April, 2008, the appellant sought a ‘No
Rakesh Dwivedi, Amitesh Kumar, Ravi Kant, Gopal Singh, Objection Certificate’ from the University of Mumbai. It also
Navin Prakash, Satyajit A. Desai, Anagha S. Desai, Asha applied for an ‘occupation certificate’ from the Municipal
Gopalan Nair for the Respondents. Corporation of Bombay for shifting the college to new premises
The Judgment of the Court was delivered by located at a distance of barely 300 meters from the old site
C C being Survey No. 12/1, 2, 4, 13/8, 9, 10A and 13/10B. In
SWATANTER KUMAR, J. 1. IA Nos.1-2 of 2012 are furtherance to this, the appellant had made an application dated
applications filed by the two students of Parshavanath College 24th May, 2008 to the Regional Office of the AICTE seeking
of Engineering run by Parshavanath Charitable Trust for its permission to shift the college to the new premises and also
permission to file special leave petition SLP (C) No. 27021 of submitted all the requisite documents. The appellant had also
2012 (CC No.15485 of 2012) against the judgment dated 22nd D D written to the Directorate of Technical Education for issuance
August, 2012 passed by the High Court of Judicature at of a No Objection Certificate for the said purpose.
Bombay in Writ Petition No.460 of 2011. The applications are
allowed subject to just exceptions. 6. It is not in dispute that in May, 2008, the college shifted
its location to the new site. This exercise was undertaken by
2. SLP (C) No.26086 of 2012 has been preferred by the the college and the Trust without taking prior approval of the
E E AICTE and without receiving “No Objection Certificate” from the
appellant-Trust against the same judgment.
University of Mumbai as well as the State Government. It is also
3 Leave granted in both the SLPs. evident from the record that no Occupation Certificate was
received from the Municipal Corporation of Thane before
4. As the challenge in both these appeals is to one and shifting.
the same judgment of the Bombay High Court, it will, thus, be F F
appropriate for us to dispose of both these appeals by this 7. On or about 24th June, 2008, the AICTE appointed an
common judgment. Expert Committee to verify the infrastructure available at the
new site and the Expert Committee visited the college on 28th
FACTS : June, 2008. It noted that No Objection Certificate of the affiliating
5. The appellant, Parshvanath Charitable Trust, was G G University for change in the location had not been produced
though they were informed that the same was in process. It also
formed as a minority community trust in the year 1993. One of
made certain observations with regard to the title of the land
its objects was to establish educational institutions.
and the same, according to them, stood in the name of some
Consequently, it established the Parshavanath College, after
other Trust which in turn had leased out the land to the appellant
obtaining approval of all the concerned authorities on 11th June,
H H
COUNCIL FOR TECH. EDU [SWATANTER KUMAR, J.]
Trust. The Committee also noticed that all the laboratories and A A in the approved site only. In any case, if the institute wants
other infrastructure had been shifted to the new site. On 30th to shift the institute to another location, due process has
June, 2008, the AICTE granted an extension of approval to the to be followed as per AICTE norms to get AICTE approval
Engineering College for the academic years 2008-2011 with for shifting.
an intake capacity of 280 students. Clause 3 of this approval
letter reads as under :- However, it was found that you have shifted your
B B
Engineering And Pharmacy institutions to another location
“3. That the institution shall operate only from the approved without obtaining approval from AICTE, which is gross
location, and that the institution shall not open any off violation of AICTE norms.
campus study centres/extensive centres directly or in
collaboration with any other institution/university In the above circumstances, you are requested to show-
organization for the purpose of imparting technical C C cause as to why disciplinary action should not be initiated
education without obtaining prior approval from the including withdrawal of approval or reducing your intake/
AICTE.” stop admission. Your reply should reach AICTE
headquarters and Regional Office within three working
8. As is obvious from a bare reading of the letter, the days.”
appellant-college was to run its courses from the campus which D D
was approved. Thereafter vide letter dated 20th August, 2009, 10. To this, the appellant Trust submitted its reply dated
AICTE granted approval to the appellant-college with increased 21st May, 2010 relevant extract of which reads as under:-
intake from 280 to 360 students for the academic year 2009.
“We have reason to state that after filing proposal for
9. The appellant college was running its courses when the shifting the aforesaid colleges to the new premises, we
E E have applied for permission for shifting the aforesaid
show cause notice dated 18th May, 2010 was issued by the
AICTE to the Trust on the ground that the college had shifted colleges in the new premises in the year 2008 only and
to another location without obtaining prior approval of the accordingly we are conducting engineering and pharmacy
AICTE. It was stated therein that an institution has to run courses colleges in the new premises.”
only from an approved site and if it desires to shift to another
F F 11. The matter remained in controversy, but as a result of
site, it has to follow the complete procedure as per the norms
issuance of show cause notice, the college of the appellant
of AICTE. The show cause notice reads as under:-
Trust was not included in the Centralised Admission Process
“Your institutions i.e. PARSHWANATH COLLEGE OF (CAP) by the State Government. The appellant, thus, challenged
ENGINEERING and VEER MATA HIRABEN P. SHAH the non- inclusion of the college in the CAP and action of the
COLLEGE OF PHARMACY are approved by AICTE for G G State Government by filing a Writ Petition before the Bombay
running engineering and pharmacy course at High Court being Writ Petition (Civil) No. 1776 of 2010. This
GODBHUNDER ROAD, KASAR VADAVALI 400601 Writ Petition was allowed by a Division Bench of the High Court
DIST. THANE as per our records as a permanent site. vide its order dated 11th August, 2010 wherein it directed as
under:-
As per AICTE norms, the institute has to run the courses
H H
“17. We, therefore, allow this petition and quash and set A A had not been granted to the appellant-college; however, reason
aside the impugned communication of the Director of thereof could not be brought to the notice of the Court at that
Technical Education and direct the respondents to permit stage because of shortage of time. In the meanwhile, certain
the appellant-college to participate in the Central disputes also arose among the management of the appellant-
Admission Process when the second round has Trust.
commenced. B B
13. Subsequent to the above order of the High Court, on
18. In view of the submission already made by the 7th January, 2011, the AICTE passed an order withdrawing the
petitioners in their reply dated 21st May, 2010 i.e. the approval granted to the appellant-college in terms of Clause
Joint Charity Commissioner has passed the restraint 2.11 of the Approval Process Handbook and the Guidelines for
against their Managing Trustee restraining him from the academic year 2008-2009 and the terms and conditions
C C mentioned in the Letter of Approval. The basis for withdrawing
interfering in the administration of the college and the
educational institution run by the trust, we also direct that the approval was shifting of the college to the new location
the respondent-Municipal Corporation of Thane should without Occupancy Certificate, without informing the State
consider the petitioner’s application for grant of occupation Government and without obtaining the requisite permission
certificate for the building in which the engineering college from the AICTE as per regulations. The Expert Committee had
and the pharmacy college are being run without being D D also noticed in its inspection dated 28th June, 2008 that the
influenced by any objection taken by Mr. Tekchand Shah construction was not suitable.
against whom the order is passed by the Charity
Commissioner. 14. This cancellation of approval was challenged by the
appellant-Trust before the Bombay High Court in Writ Petition
19. It is clarified that it is open to the AICTE to proceed E E No.460 of 2011. Inter alia, the principal contention before the
with the show-cause notice but if any order adverse to the High Court was that an application dated 24th May, 2008 was
petitioner-college is passed, the same shall not be made to the AICTE for change in location. Contemporaneously,
implemented for a period of two weeks from today. applications were also made to the University of Mumbai and
the Directorate of Technical Education for the issuance of No
20. This order is passed in presence of the learned
Assistant Government Pleader appearing for the Director
F F Objection Certificate and extension of approval by the AICTE
itself showed that the site in question met the requisite
of Technical Education and Mr. S.V. Kolla, officer, standards and there was no justification for reducing the intake
Admission Section from the office of Director of Technical capacity and withdrawing the approval. The High Court noticed
Education who shall immediately instruct the concerned that there was no challenge to the Regulations or any other
persons to place the name of the petitioner-engineering clause of the Handbook. Clause 9.22 of the Hand Book for
college on the website of the centralised online admission G G
Approval Process 2008 required a registered sale or gift deed
process today itself.” in favour of the institution and only a Government lease of 30
years was acceptable as per that clause. The relevant para of
12. It needs to be noticed at this stage that during the
Clause 9.22 reads as follows:-
proceedings before the Division Bench, the Municipal
Corporation of Thane had stated that Occupancy Certificate H H
KAPADIA, J.]
“9.22. Procedure for Change of Site and Norms A A along with Topo-sketch/Village Map indicating land
Concerning Land and Building on New Site. Survey Nos. and a copy of city map showing
location of proposal site of the institution.
Changing of location/Station may be permitted after getting
“No Objection Certificate” (NOC) from the concerned State . Site Plan, Building Plan for the new site
Govt./UT Administration and Affiliating Body, by the prepared by a registered Architect and duly
Competent Authority in AICTE as per laid down procedure B B approved by the Competent Plan Sanctioning
subject to the fulfilment of Norms and Standards of AICTE. Authority designated by the concerned State.
No request/representation/Proposal for change of site will
be considered after submission of application/proposal for . Proof of completion of the building structure at the
establishment of a new Technical Institution, till the new site as per approved Engineering &
completion of at least two years after a new institution is C C Architectural Building Plan, in the form of Color
started with the approval of AICTE. No partial shifting of photographs giving External and Internal views.
institution to a different site shall be permitted.
. An undertaking by the Institution stating that the
The following procedure shall be followed: changes shall not affect the admission procedure
and the fee that a student has to pay.”
D D
The applicant shall have to submit a Proposal along with
the following documents in original in one lot to the concerned (emphasis supplied)
Regional Office of AICTE.
15. While noticing the above Clauses, the High Court
. Registration document of the Trust/Society proceeded on the admitted position that the appellant-college
indicating members of Society/Trust and its E E had shifted to the new site without the necessary permission
Objectives. and further it had no ownership to the land in question at the
relevant time. The Court also noticed that an inspection was
. Land document(s) in original for the new site carried out by the Municipal Corporation on 9th August, 2012
showing ownership in the name of Trust/ and they had still not issued the Occupancy Certificate to the
Society in the form of Registration Sale Deed/ F F appellant-college.
Irrevocable Gift Deed (Registered)/Irrevocable
Government Lease (for a minimum of 30 years) 16. In view of the above factual matrix of the case, the
by concerned authority of Government. In Division Bench of the High Court dismissed the writ petition
case, the land documents are in vernacular vide order dated 22nd August, 2012 and also passed a
language, Notarized English translation of the direction with regard to adjustment of students in other colleges
G G keeping their welfare in mind. The operative part of the order
document must to be produced.
reads as under:-
. Land use Certificate/Land Conversion Certificate
for the new site allowing the land to be used for “20. In the exercise of the jurisdiction under Article 226 of
educational purpose, from the Competent Authority the Constitution of India it would not be permissible for this
H H
Court to direct AICTE to grant its approval for conducting A A studying in pursuance of the interim orders passed by the same
the engineering college at the new location particularly in High Court.
view of the fact that no Occupation Certificate has been
granted; the Petitioners have not established a clear title 19. We allow this application and, in fact, the affected
to or ownership of land and they have not obtained the appellant-students have been heard along with parties in the
NOCs of the State government or of the University of B main appeal. Thus, as already noticed, we would dispose of
B
Mumbai. both these appeals by this common judgment.
21. Learned Counsel appearing on behalf of AICTE has 20. Before we dwell upon the merit or otherwise of the
stated before the Court that AICTE will take all necessary contentions raised, it is necessary for us to notice certain
steps to ensure that the welfare of the students who have settled legal principles which would help in judicious disposal
C C of these appeals.
been allotted to the Petitioners would be duly taken care
of by making alternative allotments to other institutions in
21. The provisions of the All India Council for Technical
consultation with the Directorate of Technical Education of
Education Act, 1987 (for short ‘the AICTE Act’) are intended
the State government.
to improve the technical education system throughout the
22. For these reasons, it would not be appropriate to D D country. The various authorities under the AICTE Act have been
interfere with the decision which has been taken by the given exclusive responsibility to coordinate and determine the
AICTE. The Petition shall stand dismissed. There shall be standards of higher education. It is a general power given to
no order as to costs. evaluate, harmonise and secure proper relationship to any
project of national importance. Such coordinated action in
23. In view of the dismissal of the Petition, the Notices of E higher education with proper standard is of paramount
E
Motion do not survive which shall accordingly stand importance to national progress.
disposed of.”
22. The provisions of the AICTE Act, including its
17. Aggrieved from the dismissal of the writ petition by the preamble, make it abundantly clear that the AICTE has been
High Court, the appellants have filed the present appeals. established under the Act for coordinated and integrated
F F development of the technical education system at all levels
18. As already noted, two students of Parshvanath College throughout the country and is enjoined to promote qualitative
of Engineering have filed a separate application for leave to improvement of such education in relation to planned
prefer Special Leave Petition against the same judgment of the quantitative growth. The AICTE is required to regulate and
High Court dated 22nd August, 2012. According to the ensure proper maintenance of norms and standards in technical
appellant-students in Civil Appeal arising out of SLP (C) No. G G education system. The AICTE is to further evolve suitable
27021 of 2012 (CC No.15485/2012), the judgment of the High performance appraisal system for technical institutions and
Court has adversely affected their interests. It is their contention universities incorporating norms and mechanisms in enforcing
that revocation of approval has resulted in closure of the their accountability. It is required to provide guidelines for
Engineering College and it has jeopardised the future and admission of students and has the power to withhold or
career of the students studying in the college including those H H discontinue grants to such technical institutions where norms
and standards laid down by it and directions given by it from A A to the judgments of this Court in the case of Adarsh Shiksha
time to time are not followed. The duty and responsibility cast Mahavidyalaya v. Subhash Rahangdale [(2012) 2 SCC 425],
on the AICTE implies that the norms and standards to be set State of Tamil Nadu v. Adhiyaman Educational & Research
should be such as would prevent isolated development of Institute [(1995) 4 SCC 104] and Bharathidasan University v.
education in the country. All India Council for Technical Education [(2001) 8 SCC 676].
B B
23. Section 10 of the AICTE Act enumerates various 25. From the above principles, it is clear that the AICTE
powers and functions of AICTE as also its duties and has varied functions and powers under the AICTE Act. It is a
obligations to take steps towards fulfilment of the same. One specialized body constituted for the purpose of bringing
such power as envisaged in Section 10(1)(k) is to “grant uniformity in technical education all over the country and to
approval for starting new technical institutions and for ensure that the institutions which are recognised by the AICTE
introduction of new courses or programmes in consultation with C C are possessed of complete infrastructure, staff and other
the agencies concerned”. It is important to see that the AICTE facilities and are capable of maintaining education standards
is empowered to inspect or cause to inspect any technical for imparting technical education.
institution in clause (p) of sub-section (1) of Section 10 without
any reservation whatsoever. However, when it comes to the 26. It is not necessary for us to refer to various provisions
question of universities, it is confined and limited to ascertaining D D of the AICTE Act in any greater detail as no controversy in
the financial needs or its standards of teaching, examination relation to application or interpretation of any of its provisions
and research. The inspection may be made or caused to be is raised for consideration in the present case. The facts are
made of any department or departments only and that too, in primarily admitted and it is only the exercise of discretion vested
such manner as may be prescribed, as envisaged in Section in the AICTE which is the subject matter of challenge in the
11 of the AICTE Act. E E present appeals. In the case of Jaya Gokul Educational Trust
v. Commissioner & Secretary to Government Higher
24. All these vitally important aspects go to show that the Education Department, Thiruvanathapuram, Kerala State and
Council (AICTE) created under the AICTE Act is not intended Anr. [(2000) 5 SCC 231], this Court after discussing all the
to be an authority either superior to or to supervise and control relevant provisions of the AICTE Act and provisions of the
the universities and thereby superimpose itself upon such F F Madras University Act, 1923 (for short “the Madras Act”) which
universities merely for the reason that they are imparting required the Institute to obtain approval of the State Government
teaching in technical education or programmes in any of their before it started the academic courses, found that the
departments or units. A careful scanning of the provisions of provisions of the latter Act overlapped and were in conflict with
the AICTE Act and the provisions of the University Grants the provisions of the AICTE Act in various areas and granting
Commission Act, 1956 in juxtaposition, will show that the role of approval for starting new technical institutions, inspection of
G G
of AICTE vis-à-vis the universities is only advisory, technical institutions, etc. The Court held as under:-
recommendatory and one of providing guidance, thereby
subserving the cause of maintaining appropriate standards and “17. ... Thus, in the two passages set out above, this Court
qualitative norms and not as an authority empowered to issue clearly held that because of Section 19(K) of the Central
and enforce any sanctions by itself. Reference can be made Act which vested the powers of granting approval in the
H H Council, the T.N. Act of 1976 and the University Act, 1923
could not deal with any questions of ‘approval’ for A A by the University, could not be inconsistent with the
establishment of technical institutions. All that was provisions of the Central Act. The University could not,
necessary was that under the Regulations, the AICTE therefore, in any event have sought for “approval” of the
Council had to consult them. State Government.
XXX XXX XXX 23. Thus we hold, in the present case that there was no
B B
statutory requirement for obtaining the approval of the State
22. As held in T.N. case the Central Act of 1987 and in Government and even if there was one, it would have been
particular, Section 10(k) occupied the field relating to “grant repugnant to the AICTE Act. The University Statute 9(7)
of approvals” for establishing technical institutions and the merely required that the “views” of the State Government
provisions of the Central Act alone were to be complied be obtained before granting affiliation and this did not
with. So far as the provisions of the Mahatma Gandhi C C amount to obtaining “approval”. If the University statute
University Act or its statutes were concerned and in required “approval”, it would have been repugnant to the
particular Statute 9(7), they merely required the University AICTE Act. Point 1 is decided accordingly.
to obtain the “views” of the State Government. That could
not be characterised as requiring the “approval” of the XXX XXX XXX
State Government. If, indeed, the University statute could D D
27. The so-called “policy” of the State as mentioned in the
be so interpreted, such a provision requiring approval of counter-affidavit filed in the High Court was not a ground
the State Government would be repugnant to the for refusing approval. In Thirumuruga Kirupananda &
provisions of Section 10(k) of the AICTE Act, 1987 and Variyar Thavathiru Sundara Swamigal Medical
would again be void. As pointed out in T.N. case there Educational & Charitable Trust v. State of T.N. which was
were enough provisions in the Central Act for consultation E E a case relating to medical education and which also
by the Council of AICTE with various agencies, including related to the effect of a Central law upon a law made by
the State Governments and the universities concerned. The the State under Entry 25 List III, it was held (at SCC p. 35,
State-Level Committee and the Central Regional para 34) that the
Committees contained various experts and State
representatives. In case of difference of opinion as F F “essentiality certificate cannot be withheld by the
between the various consultees, AICTE would have to go State Government on any policy consideration
by the views of the Central Task Force. These were because the policy in the matter of establishment
sufficient safeguards for ascertaining the views of the State of a new medical college now rests with the Central
Governments and the universities. No doubt the question Government alone”.
of affiliation was a different matter and was not covered G G
by the Central Act but in T.N. case it was held that the (emphasis supplied)
University could not impose any conditions inconsistent
Therefore, the State could not have any “policy” outside the
with the AICTE Act or its Regulation or the conditions
AICTE Act and indeed if it had a policy, it should have
imposed by AICTE. Therefore, the procedure for obtaining
placed the same before AICTE and that too before the
the affiliation and any conditions which could be imposed H H latter granted permission. Once that procedure laid down
in the AICTE Act and Regulations had been followed A A professional education. It shall take precedence over the
under Regulation 8(4), and the Central Task Force had also opinion of the State as well as that of the University. The
given its favourable recommendations, there was no concerned department of the State and the affiliating university
scope for any further objection or approval by the State. have a role to play, but it is limited in its application. They cannot
We may however add that if thereafter, any fresh facts lay down any guidelines or policies in conflict with the Central
came to light after an approval was granted by AICTE or B B statute or the standards laid down by the Central body. The
if the State felt that some conditions attached to the State can frame its policies, but such policy again has to be in
permission and required by AICTE to be complied with, conformity with the direction issued by the Central body. Though
were not complied with, then the State Government could there is no such apparent conflict in the present case, yet it
always write to AICTE, to enable the latter to take needs to be clarified that grant of approval by the State and
appropriate action. C C affiliation by the University for increased intake of seats or
commencement of new college should not be repugnant to the
Decision of University in not granting further or final conditions of approval/recommendation granted by the AICTE.
affiliation wrong on merits. These authorities have to work in tandem as all of them have
the common object to ensure maintenance of proper standards
XXX XXX XXX
of education, examination and proper infrastructure for
D D
30. Thus, the University ought to have considered the grant betterment of technical educational system.
of final or further affiliation without waiting for any approval
28. It is also a settled principle that the regulations framed
from the State Government and should have acted on the
by the central authorities such as the AICTE have the force of
basis of the permission granted by AICTE and other
law and are binding on all concerned. Once approval is granted
relevant factors in the University Act or statutes, which are
E E or declined by such expert body, the courts would normally not
not inconsistent with the AICTE Act or its Regulations.”
substitute their view in this regard. Such expert views would
27. The consistent view of this Court has been that where normally be accepted by the court unless the powers vested in
both Parliament and State Legislature have the power to such expert body are exercised arbitrarily, capriciously or in a
legislate, the Central Act shall take precedence in the matters manner impermissible under the Regulations and the AICTE
which are covered by such legislation and the State enactments F F Act. In the case of AICTE v. Surinder Kumar Dhawan [(2009)
shall pave way for such legislations to the extent they are in 11 SCC 726], this Court, while stating the principles that the
conflict or repugnant. As per the established canons of law, courts may not substitute their opinion in place of opinion of the
primacy of the Central Act is undisputable which necessarily Council, held as under:-
implies primacy of AICTE in the field of technical education.
“The role of statutory expert bodies on education and role
Statutes like the present one as well as the National Council G G
of courts are well defined by a simple rule. If it is a question
for Teachers Education Act, 1993, the Medical Council of India
of educational policy or an issue involving academic
Act, 1956, etc. fall within the ambit of this canon of law. The
matter, the courts keep their hands off. If any provision of
AICTE is the authority constituted under the Central Act with the
law or principle of law has to be interpreted, applied or
responsibility of maintaining operational standards and judging
enforced, with reference to or connected with education,
the infrastructure and facilities available for imparting H H courts will step in. In Dr. J.P. Kulshreshtha v. Chancellor,
Allahabad University: (1980) IILJ 175 SC this Court A A ad hoc measure. But together they lead to an unintended
observed: dilution of educational standards, adversely affecting the
standards and quality of engineering degree courses.
Judges must not rush in where even educationists fear Courts should guard against such forays in the field of
to tread... While there is no absolute bar, it is a rule of education.”
prudence that courts should hesitate to dislodge B B
decisions of academic bodies. 29. Right from the case of Unni Krishnan, J.P. and others
etc. etc. V. State of Andhra Pradesh and Others etc. etc.
In Maharashtra State Board of Secondary and Higher [(1993) 1 SCC 645], this Court has unequivocally held that the
Secondary Education v. Paritosh Bhupesh Kumar Sheth right to establish an educational institution does not carry within
: [1985] 1 SCR 29, this Court reiterated: it the right to recognition or the right to affiliation. Grant of
C C recognition or affiliation is neither a matter of course nor is it a
..the Court should be extremely reluctant to substitute its
formality. Admission to the privileges of a University is a power
own views as to what is wise, prudent and proper in
to be exercised with great care keeping in view the interest of
relation to academic matters in preference to those
the public at large and the nation. Recognition has to be as per
formulated by professional men possessing technical
statutorily prescribed conditions and their strict adherence by
expertise and rich experience of actual day-to-day working D D all concerned. These conditions of recognition and the duly
of educational institutions and the departments controlling
notified directions controlling the admission process are to be
them.”
construed and applied stricto sensu. They cannot be varied
18. This is a classic case where an educational course has from case to case. Time schedule is one such condition
been created and continued merely by the fiat of the court, specifically prescribed for admission to the colleges.
without any prior statutory or academic evaluation or E E Adherence to admission schedule is again a subject which
assessment or acceptance. Granting approval for a new requires strict conformity by all concerned, without exception.
course or programme requires examination of various Reference in this regard can be made to Ranjan Purohit and
academic/technical facets which can only be done by an Ors. v. Rajasthan University of Health Science and Ors.
expert body like AICTE. This function cannot obviously be [(2012) 8 SCALE 71] at this stage, in addition to the case of
taken over or discharged by courts. In this case, for F F Medical Council of India v. Madhu Singh [(2002) 7 SCC 258].
example, by a mandamus of the court, a bridge course was
30. In light of the above principles, let us now revert to the
permitted for four year Advance Diploma holders who had
facts of the case in hand. There is no dispute as to the fact that
passed the entry level examination of 10+2 with PCM
the appellant-college had shifted to the new premises without
subjects. Thereafter, by another mandamus in another
G approval of the AICTE and without ‘No Objection Certificate’
case, what was a one time measure was extended for G
from the State Government and Directorate of Technical
several years and was also extended to Post Diploma
Education. Undisputedly, the college had no title to the property
holders. Again by another mandamus, it was extended to
in question inasmuch as the property had been sold in a Court
those who had passed only 10+1 examination. Each
auction by the bank on 8th August, 2011 and had been
direction was obviously intended to give relief to students
purchased by a firm in which the members of the Trust were
who wanted to better their career prospects, purely as an H H
partners. This partnership firm had executed a Memorandum A A to be a deemed compliance of all the requirements. We shall
of Understanding with the appellant Trust and given property on separately deal with the issue with regard to the effect of these
lease to the Trust. These undisputed facts clearly show that the letters and whether withdrawal of approval was a step
appellant-college had no title to the property and, in fact, it did appropriately taken by the AICTE or not as well as the effect
not even have a registered lease deed in its favour to create of the prescribed time schedule. As of now, suffice it to note
some recognizable interest in the property in question. The B B that even these approvals for the relevant academic years had
High Court in its judgment had specifically noticed the defects clearly stated that the institution shall operate only from the
pointed out by the Expert Committee. They, inter alia, related approved location and it shall not open any campus/executive
to some disputes within the management of the Trust, failure centres directly or in collaboration with any other institution/
to obtain NOC from the State Government, Occupancy university for the purpose of imparting technical education
Certificate from the Municipal Corporation, Thane and NOC C C without obtaining prior approval from the AICTE. The approval
from the University of Mumbai, omission to seek/obtain the for these academic years was granted to the college being run
approval of AICTE and finally shifting to the new premises at Survey Nos.27 (part) at Lasandvali, Godbhunder Road,
despite such non-compliance. Kasar Vadavali, Thane, and not at any other place.
31. We have already noticed that the compliance with the 33. Thus, there is no occasion to take it as a deemed and/
conditions for approval as well as regulations and provisions D D or implied approval for the new site of the appellant-college.
of the AICTE Act is an unexceptionable condition. Clause 9.22 Approval can hardly be inferred. It is a matter of fact and the
of the Handbook of Approval Process issued by the AICTE authorities are expected to pass appropriate orders in
provides a complete procedure for change of location, station accordance with law and upon due diligence and in compliance
and the same is permissible subject to compliance with the with the procedure prescribed under law. For these reasons,
procedure. It contemplates obtaining of ‘No Objection E E we find that the view taken by the High Court does not call for
Certificate’ from the concerned State Government or UT any interference.
Administration and affiliating body. The same clause also
requires submission of the land documents in original and 34. Thus, the view of the High Court that the college had
clearly provides that the same may be a registered sale deed, failed to comply with the requirements for grant of approval and
irrevocable government lease for a minimum period of 30 F F had shifted to the new site without approval of the AICTE and
years, etc. by the concerned authority of the Government. other concerned authorities cannot be faulted with. There being
Further, it provides that site plan, building plan for new site no compliance to the legal requirements and binding conditions
should be prepared by a registered architect and should be of recognition, the withdrawal of approval by the AICTE can also
approved by the Competent Plan Sanctioning Authority be not interfered with. Shifting of students is a consequential
designated by the State. order and is in the interest of the students.
G G
32. One of the contentions raised before us is that the 35. The sequel to the above finding is that the appellant
AICTE itself had granted approval for the academic years college could not have been included in the counselling for the
2008-09 and 2009-10 both vide letters dated 30th June, 2008 current year. Even otherwise, the last date for admission was
and 20th August, 2009, respectively. This itself should be taken 30th August, 2012, which is since over and we see no reason
H H
whatsoever to extend this date. We have already noticed A A Sl. Stage of processing Last date by
various judgments of this Court stating that the Court is required No application which the
to strictly construe and comply with the schedule for admission. processing should
Even on that count, the appellant would not be entitled to any be completed
other relief.
B B (1) (2) (3)
36. Another argument raised before us is that the
appellant-college had applied for shifting of the college to the 1. For receiving proposals by 31st December
new premises on 24th May, 2008, but even after a lapse of two Bureau RC.
years, the AICTE had not finally disposed of said request.
C 2. For the Bureau RC to screen the
37. The college had shifted to the new premises without C
application and (a) to return the
requisite permission/approval and still permission was granted
incomplete applications to
for the two years, i.e., 2008-09 and 2009-10 and the show
applicants, and (b) to forward the
cause notice was issued only on 18th May, 2010. We have no
applications to (i) State
hesitation in observing that the AICTE is evidentiary at fault and
Government concerned (ii)
it ought not to have granted any approval for the academic D D
University or State Board
years 2008-09 and 2009-10. There has been definite
concerned, for their comments (iii)
slackness and irresponsibility in functioning on the part of the
Regional Officer to arrange visits by
AICTE. The approval itself was issued by the Regional
Export Committees, and (iv)
Committee when the application for transfer was pending with
Bureaus MPCD, BOS and RA for
the AICTE itself. It is a matter of regret that as a result of such E E their comments.
approval granted by the AICTE, the career of these students
has been jeopardised to some extent. Now, they are required 3. For receiving the comments is from 15th March
to shift colleges mid-term, even in excess of specified seats (i) the State Government (ii) the
of those colleges and hinder their academic courses. All this University or State Board and (iii)
is bound to prove disadvantageous to their academic career. F F the Regional Committee based on
38. It is the requirement of law that there should be strict the Expert Committee’s report and
adherence to the time schedule for grant of approval as well (iv) from the Bureaus MPCD, BOS
as for admissions without exception. In exercise of the powers and RA
vested in the AICTE, under sub-section (1) of Section 23 of the
AICTE Act, it had made regulations namely the All India Council G G 4. For consideration of the comments 31st March
from the State Governments,
for Technical Education (Grant of Approvals for Staffing New
Universities or State Boards,
Technical Institution, Introduction of Course and Programmes
Regional Committees, and
and Approval of Intake Capacity) Regulations, 1994. Schedule
Bureaus of the Council by the State
to these regulations reads as under:-
H H level Committee
5. For recommendations to be made 15th April A A 41. Apparently, there seems to be some variations in the
by the Central Task Force Schedule issued under Regulation 8(15), as aforenoticed, and
the dates reflected in the Handbook. Another Schedule has
6. For communicating the final decision been printed as per the website of the AICTE according to
to the State Government or the 30th April which the letter of approval for starting new technical institutions
University Grants Commission, B B could be issued by 10th October, if application was submitted
under intimation to the Regional between January to June of the relevant year and 10th April, if
office, Director of Technical the application was submitted between July to December of
Education, applicant, University or that year. Rejection of approval is an order which is appealable
State Board to the Appellate Committee of the AICTE. If the applicant
C C wishes to file an appeal against the order, he is expected to
39. This Schedule has statutory backing. Thus, its file the appeal and, in any case, after directions of the Appellate
adherence is mandatory and not directory. Committee are complied with, the order of approval after the
reconsideration/appeal has to be issued by 15th November in
40. Non-adherence of this Schedule can result in serious
the first case and 15th May in the other. If one reads these two
consequences and can jeopardize not only the interest of the
schedules collectively, it is clear that the letter of approval should
college students but also the maintenance of proper standards D D
be issued by 15th April or by 30th April at the maximum. It is
of technical education. The authorities concerned, particularly
only the Appellate Committee’s order which can be issued by
the AICTE, should ensure proper and timely action upon the
15th May. If such order grants recognition, then it must specify
applications submitted to it. It must respond to the applicant
the academic year for which it is being granted. If it falls foul of
within a reasonable time period and should not let the matter
the admission schedule, then it ought not to be granted for the
drag till the final date giving rise to avoidable speculations by E E current academic year. It has been brought to our notice that
all stakeholders. Thus, it would be appropriate for these
the last date for admission to the courses and the date on which
authorities to bring to the knowledge of the parties concerned,
the courses should begin is 30th August of the academic year.
the deficiencies, if any, and the defects pointed out by the
In that event, admissions to such courses, if permitted by the
Expert Committee during the inspection within three weeks
appellate authority, could be made strictly in accordance with
from the date of such inspection or pointing out of defects, as F F the academic Schedule and without violating the same in any
the case may be. For better administration, the AICTE should
manner whatsoever. This brings us to the admission schedule
also state the time within which such deficiencies/defects
which again should be strictly obeyed by all concerned.
should be removed by the applicant. This will help in building
of a coherent and disciplined method of working to ensure the 42. We must notice that admission schedule should be
proper implementation of the entire formulated scheme of G G declared once and for all rather than making it a yearly
technical education. The AICTE will not have any jurisdiction or declaration. Consistency and smoothness in admission
authority to issue approval for commencement of a new course process would demand and require that there is a fixed and
or for additional intake of students beyond 30th April of the year unaltered time schedule provided for admission to the colleges
immediately preceding the commencement of an academic so that the students know with certainty and well in advance the
year.
H H admission schedule that is to be followed and on the basis of
which they are to have their choice of college or course A A Last date upto which students can 30th August
exercised. The Schedule for admission for the coming be admitted against vacancies
academic year, i.e., 2013-2014 has been submitted to the arising due to any reason (no
Court after the matter was reserved for judgment. The said student should be admitted in any
Schedule reads as under : institution after the last date under
B B any quota)
Event Schedule
Last date of granting or refusing 30th April
Conduct of Entrance Examination In the month of May approval by AICTE
(AIEEE/State CET/ Mgt. quota
exams etc.) Last date of granting or refusing
C C 31st May
approval by University / State Govt.
Declaration of Result of Qualifying th
On or before 5 June
Examination (12th Exam or 43. The above Schedule though was finalized by the
similar) and Entrance Examination Committee on 29th January, 2012 but the same appears to
have been notified only on 30th September, 2012. The reasons
1st round of counselling/ admission To be completed on or D D for the same are again unknown. We are unable to appreciate
for allotment of seats before 30th June that once the academic session begins on 1st August, then as
to why should admission be granted upto 30th August of the
2nd round counselling for allotment To be completed on or year, particularly when, as per the terms of the Schedule,
of seats before 10th July beyond or after 30th April, AICTE will not issue any approval
E E for commencement of new course for additional intakes. The
Last round of counselling for To be completed on or Schedule, thus, introduces an element of arbitrariness and may
allotment of seats before 20th July cause prejudice to the students who might miss their classes
for a period of one month without any justification. Thus, it is
Last date for admitting candidates 30th July. required that the above-stated Schedule be modified to bring
in seats other than allotted above F F it in line with the Schedule for approval as well as to prevent
However, any number of inequalities, arbitrariness and prejudice from affecting the
rounds for counselling students in relation to their academic courses. The order
could be conducted granting or refusing approval, thus, should positively be passed
depending on local by 10th April of the relevant year. The appeal should be filed
requirements, but all the within one week and the Appellate Committee should hear the
F G
rounds shall be appeal and decide the same by 30th April of the relevant year.
completed before 30th The University should grant/decline approval/affiliation by 15th
July May of the relevant year. Advertisement should be issued and
entrance examination conducted positively by the end of the
Commencement of academic 1st August
month of May. The appropriate Schedule, thus, would be as
session H H
follows :
Event Schedule A A Last date upto which students can 15th August
be admitted against vacancies
arising due to any reason (no
Conduct of Entrance Examination In the month of May student should be admitted in any
(AIEEE/State CET/Mgt. quota
institution after the last date under
exams etc.)
B B any quota)
Declaration of Result of Qualifying On or before 5th June Last date of granting or refusing 10th April
Examination (12th Exam or approval by AICTE
similar) and Entrance Examination
C C Last date of granting or refusing 15th May
1st round of counselling/ admission To be completed on or approval by University / State Govt.
for allotment of seats before 30th June
44. The admission to academic courses should start, as
2nd round counselling for allotment proposed, by 1st August of the relevant year. The seats
To be completed on or D D
of seats remaining vacant should again be duly notified and advertised.
before 10th July
All seats should be filled positively by 15th August after which
there shall be no admission, whatever be the reason or ground.
Last round of counselling for To be completed on or
allotment of seats. before 20th July 45. We find that the above Schedule is in conformity with
E E the affiliation/recognition schedule afore-noticed. They both can
co-exist. Thus, we approve these admission dates and declare
Last date for admitting candidates 30th July. it to be the law which shall be strictly adhered to by all concerned
in seats other than allotted above and none of the authorities shall have the power or jurisdiction
However, any number to vary these dates of admission. Certainty in this field is bound
of rounds for F F to serve the ends of fair, transparent and judicious method of
counselling could be grant of admission and commencement of the technical
conducted depending courses. Any variation is bound to adversely affect the
on local requirements, maintenance of higher standards of education and systemic
but all the rounds shall and proper completion of courses.
be completed before G G
30th July 46. Having declared the confirmed Schedule for grant of
approval and completion of admission process, now it is
necessary for us to revert to the apparent error in exercise of
Commencement of academic 1st August
power and discretion by the AICTE. Admittedly, the appellant-
session
H H
college had been carrying on its education courses since the A A accordance with law.
year 1994. It had submitted its application for transfer to the
new site on 24th May, 2008. There is no document placed 48. For the reasons afore-recorded, we find no merit in
before us by any party including the AICTE to show that this both the appeals afore-referred. While dismissing these
application was dealt with either by the Regional Office or by appeals, we issue the following directions :
the main office of the AICTE. Having known the fact that the B B (i) Both grant/refusal of approval and admission
college had shifted to a new site, the AICTE accorded approval
schedule, as aforestated, shall be strictly adhered
for the academic years 2008-09 and 2009-10 for which again
to by all the authorities concerned including the
there is no justification placed on record. It is the case of the
AICTE, University, State Government and any other
appellant that the Expert Committee visited the new site of the
authority directly or indirectly connected with the
appellant-college where the college was being run on 26th C C grant of approval and admission.
June, 2008. Thereafter approval for the two academic years
was granted. Strangely, on the basis of the same report, on 18th (ii) No person or authority shall have the power or
May, 2010 the show cause notice was issued and again the jurisdiction to vary the Schedule prescribed
Expert Committee is stated to have visited the college hereinabove.
premises on 16th July, 2010 leading to the issuance firstly of D D (iii) While dealing with the application for grant of
the rejection of the seats and, secondly, of withdrawal/
cancellation of approval on 7th January, 2011. approval to new colleges or additional seats, the
AICTE shall inform the applicant within three weeks
47. We fail to understand why the college was granted from the date of receipt of its application or date
approval for the academic years 2008-09 and 2009-10 of inspection, as the case may be, the
particularly when the Expert Committee is stated to have visited E E shortcomings/defects, who, in turn, shall remove
the premises on 26th June, 2008 and found inadequacies in such shortcomings/defects within 15 days from the
the report. It is certainly a lapse on the part of the AICTE which date of such communication or within such period
cannot be ignored by the Court as it had far-reaching as the AICTE may grant and re-submit its papers
consequences including placing the career of the students without default. The process of grant of approval
admitted during these two years in jeopardy. Even though the F F has to be transparent and fair. The AICTE or the
High Court has directed allocation of these students in other concerned University or State Government shall
colleges, their academic course certainly stands adversely take disciplinary action against the person who
affected and disturbed, for which the AICTE is responsible. In commits default in adherence to the Schedule and
this regard, the Court cannot overlook such apparent erroneous performance of his duties in accordance therewith.
approach and default which can be for anything but bona fide G G
reasons. Thus, we impose costs of Rs.50,000/- upon the AICTE (iv) The reports submitted by the Expert Committee
for such irresponsible working. The costs would be payable to visiting the college should be unambiguous and
the Supreme Court Legal Services Committee and would be clear, and should bear the date and time of
recovered from the salary of the erring officials/officers involved inspection and should be sufficiently
in this erroneous approach. The recovery shall be effected in H comprehensive and inspection be conducted in the
H
PARSHAVANATH CHARITABLE TRUST v. ALL INDIA 1099 [2012] 11 S.C.R. 1100
presence of a representative of the institute. A A STATE OF PUNJAB

v.
(v) The students of the appellant-college shall be re- GIAN CHAND & ORS.
allocated to the recognized and affiliated colleges (Civil Appeal No. 9007 of 2012 etc.)
in terms of the judgment of the High Court; and the
AICTE and the concerned University shall ensure DECEMBER 13, 2012
B B
that the academic courses of these students are
completed within the balance period of the
academic year in all respects. For this purpose, if
extra classes are required to be held, the Service Law – Pension – Commutation – Table for
concerned institute, the University and the AICTE calculation of commutation substituted by a Circular –
are directed to ensure holding of such extra classes. C C Affecting the employees of Punjab State Electricity Board
retiring between 31-7-2003 and 31-10-2006 – Writ petition by
(vi) If the appellate authority decides the matter prior to the employees retiring between the above period contending
30th April of the concerned year and grants that the Circular was to their disadvantage – High Court
approval to a college, then alone such institution will allowing the petitions – On appeal, new plea raised by State
be permitted to be included in the list of colleges D D that Circular was issued due to financial crunch and that under
to which admissions are to be made and not the Rules, the respondents-employees had option to withdraw
otherwise. In other words, even if the appellate the request of commutation – Held: New pleas are not
authority grants approval after 30th April, it will not permissible to be raised for the first time before Supreme
be operative for the current academic year. All Court – But the new questions raised are substantial legal
colleges which have been granted approval/ E E questions and are having far reaching consequences and
affiliation by 10th or 30th April, as the case may be, hence require discussion and determination by the Court –
shall alone be included in the brochure/ The impugned judgment also lacks proper reasoning –
advertisement/website for the purpose of Therefore, matter remitted to High Court for fresh decision in
admission and none thereafter. accordance with law – Cost of Rs. 50,000/- to be paid to
F respondent Nos. 1 to 26 in equal proportion – Punjab Civil
R.P. Appeals dismissed. F
Services Rules Vol. II – r. 11.5(1), Note 2 – Practice and
Procedure – New Plea – Permissibility.
Practice and Procedure – New Plea – Raised before

Supreme Court – Permissibility – Held: Not permissible –
G Determination of new plea may deprive either of the parties
of a right to appeal to Supreme Court – Such deprivation can
be construed as prejudicial to the rights and interest of the
parties.
H 1100
STATE OF PUNJAB v. GIAN CHAND & ORS. 1101 1102 SUPREME COURT REPORTS [2012] 11 S.C.R.
Punjab State Electricity Board had adopted the A A HELD: 1.1. From the record, it is clear that the
Rules pertaining to pension contained in the Punjab Civil substantial pleas are being sought to be raised before
Services Rules, Vol. II for its employees. Table of this Court for the first time. From the orders passed by
commutation of pension was provided in terms of Rule this Court, it is clear that while granting liberty to the State
11.5(2) of the Civil Services Rules. Appellant-State issued to file additional affidavit, no objection was raised by the
a Circular dated 29.7.2003, whereby the existing table was B B respondents. Now, once the additional facts and
replaced with a new table for calculation of commutation grounds had been brought on record to which the said
of pension and was applicable to all the cases of respondents have already filed a rejoinder, they cannot
retirement arising on or after 31.7.2003. However, by a be permitted to raise the objection in regard to the new
further Circular dated 31.10.2006, the previous circular grounds being examined by the Court. There are
was superseded, revising the existing table of C C certainly lapses on the part of the State, but the questions
commutation of pensions. raised before this Court are not only substantial legal
questions but are also likely to have far reaching
The employees-respondents who retired between consequences. It is argued that the Circular dated 29th
31.7.2003 and 30.10.2006 filed writ petition, challenging July, 2003 has been issued by the State of Punjab and
the Circular dated 29.7.2003 contending that the table of the same having been quashed, there is every likelihood
calculation of commutation of pensions, provided by that D D
that all the employees of the State of Punjab, including
Circular was to their disadvantage. They pleaded that it various corporations, would raise similar claims. The
was in violation of Article 14 of the Constitution. High grounds with regard to Note 2 of Rule 11.5, financial
Court allowed the petition. crunch of the State and there being proper rationale for
fixation of the cut-off period (31st July, 2003 to 30th
In appeal to this court, appellant-State inter-alia E E October, 2010) are matters which require discussion and
contended that the State issued the Circular dated
determination by the Court in accordance with law.
29.7.2003, as the State was suffering from serious
Equally, the pleas raised by the respondents require
financial crunch and that the respondents had choice to
proper examination. There is no doubt that the Circular
withdraw the request of commutation under Note 2 to
dated 29th July, 2003 does not contain any reason,
Rule 11.5 (1). F F whatsoever, for passing a directive, which enmass
The respondents contended that all the pleas raised adversely affects the people who have retired in the
before this court by the appellant was raised for the fist period between 31st July, 2003 to 31st October, 2006.
time and taking new grounds for the first time before Additional affidavit filed before this Court, with the leave
Supreme Court could not be permitted. of the Court, does provide reasons and some justifiable
G G grounds in support of the Circular. [Paras 11 and 12]
Partly allowing C.A. Nos. 9007, 9010, 9011, 1912, [1112-A-E]
9013, 9014, 9015, 9016 and 9019 of 2012 and remitting
them to High Court and directing to detach the C.A.Nos. 1.2. The judgment impugned does not discuss the
9008-9009/2012, 9017/2012 and 9018/2012 from the other plea of arbitrariness and discrimination in its proper
appeals, the Court H H perspective. The Court also has not deliberated upon as
to whether the law stated by this Court in the case of *V. A A Rajinder Singh v. State of Punjab (2001) 5 SCC 482: 2001(2)
Kasturi is applicable to the facts of the case in hand or SCR 1108 – referred to.
not, particularly with reference to the contentions raised.
Another aspect which could be considered by this Court 2. As the questions arising Civil Appeal Nos. 9008-
on the basis of the material produced before it, was 9009/2012 and 9017-9018/2012 are different and the High
whether the format to a statutory rule can be amended, Court has dealt with these questions on merits, the
B B
altered or substituted by an executive order. For lack of arguments raised in Civil Appeals Nos. 9007/2012, 9010-
proper reasoning in the judgment of the High Court, in 9016/2012 and 9019/2012 are not available to the State of
view of the additional pleas raised before this Court Punjab in these cases. Thus, these cases are ordered to
which have significant ramifications in law and with be detached from this batch and be listed for hearing
regard to the liability of the State, the judgment of the High independently. [Para 15] [1113-F-G]
C C
Court is set aside and the matter is remitted to the High Case Law Reference:
Court for fresh decision in accordance with law. [Paras
12 and 13] [1112-F-H; 1113-A-B] 1998 (5) SLR 629 Referred to. Para 8
1.3. The determination of the contentions raised (2006) 5 SCC 65 Referred to. Para 8
before this Court for the first time may deprive either of D D
2005 (2) Suppl. SCR 549 Referred to. Para 8
the parties of a right to appeal to this Court. Deprivation
of right to appeal can be construed as prejudicial to the (1994) 4 SCC 69 Referred to. Para 8
rights and interests of the parties to the lis. [Para 13]
2010 (6) SCR 291 Referred to. Para 8
[1113-C-D]
E E 1983 (2) SCR 165 Referred to. Para 9
1.4. The Civil Appeal Nos. 9007 of 2012, 9010-9016 of
2012 and 9019 of 2012 are partly allowed and the matter 2001(2) SCR 1108 Referred to. Para 9
is remitted to the High Court, however, with cost of
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
Rs.50,000/- to be paid to the respondent Nos.1 to 26 in
9007 of 2012.
equal proportion cost being conditional to the hearing of F F
the writ petition, in default thereto, the appeal preferred From the Judgment & Order dated 21.7.2008 of the High
by the State shall stand dismissed. [Para 14] [1113-D-E] Court of Punjab & Haryana at Chandigarh in CWP No. 15554
of 2007.
*V. Kasturi v. Managing Director, State Bank of India 1998
(5) SLR 629; State of Bihar v. Bihar Pensioner’s Samaj WITH
(2006) 5 SCC 65; State of Punjab v. Amar Nath Goyal (2005) G G
6 SCC 754: 2005 (2) Suppl. SCR 549; Union of India v. P.N. C.A. Nos.9008-9009, 9010, 9011, 9012, 9013, 9014,
Menon and Ors. (1994) 4 SCC 69; Chairman, All India 9015, 9016, 9017, 9018, 9019 of 2012.
Railway Recruitment Board and Anr. v. M. Shyam Kumar and
Ors. (2010) 6 SCC 614: 2010 (6) SCR 291; D.S. Nakara v. K.V. Viswanathan, Balram Gupta, Nidhesh Gupta, Jayant
Union of India (1983) 1 SCC 305:1983 (2) SCR 165; Dr. H H K. Sud, Rakesh Khanna, Manjit Singh, AAG, Shefali Malhotra,
Adeeta Mujahid, Balaji Srinivasan, Udit Kumar Chaturvedi, A A Rules shall be deemed to have been substituted
Arzu Chimni (for Kuldip Singh), K.K. Mohan, Tarjit Singh (for accordingly. Correction slip shall be issued in due course.
Kamal Mohan Gupta), Ajay Pal, Suryanarayana Singh, Pragati
Neekhra,Tarun Gupta, M.K. Ghai, S. Janani, K. Sarada Devi, It may please be ensured that this is brought to the
Nikhil Nayyar, Ansar Ahmad Chaudhary for the appearing notice of all the employees who are retiring on or after
parties and M.L. Ahuja (Respodent-in-person). B 31.07.2003 inviting their attention to provisions of Note 2
B
below Rule 11.5(1) of Punjab Civil Services Rules, Volume-
The Judgment of the Court was delivered by II.”
SWATANTER KUMAR, J. 1. Leave granted in all the 3. The grievance of the respondents was in relation to the
Special Leave Petitions. table of calculation of commutation of pension, which had been
C C replaced to the disadvantage of the persons who had retired
CAs @ SLP (C) Nos. 25856/08, 18878/10, 22841/09, 23121/ within the above-referred period. They pleaded violation of
10, 23607/10, 25387/12, 27327/08, 3110/12 and 9569/10 Article 14 of the Constitution of India.
2. Petitioners before the High Court and Respondent 4. The PSEB had framed regulations called the Punjab
Nos.1 to 26 before this Court, were in service of the Punjab State Electricity Board Main Service Regulations, Vol.I, Part I,
D D
State Electricity Board (for short, the ‘PSEB’) on different posts. 1972 in exercise of the powers conferred by Section 79(c) of
All these respondents superannuated on different dates the Electricity Supply Act, 1948. Regulation 1.7 of these
between 31st July, 2003 and 30th October, 2006 after they had Regulations provided that unless it was otherwise specifically
satisfactorily rendered the required years of service in PSEB. provided in any regulation, the PSEB employees’ claim to pay
Though these respondents had retired on different dates, their and allowances shall be regulated by the Regulations in force
grievance was common and hence all of them filed a common E E
at the time in respect of which the pay and allowances are
writ petition challenging the circular dated 29th July, 2003 earned. It also provided that claims with regard to pension shall
issued by the Government. The circular dated 29th July, 2003 be by the regulations in force applicable to him at the time when
reads as under : the employee retires or is discharged from service. As the
PSEB had not framed any Regulations of its own with regard
“I am directed to invite a reference to the subject cited F F to the Pension Rules pertaining to pension contained in the
above and to say that the Governor of Punjab is pleased
Punjab Civil Services Rules, Vol.II were to be applicable to the
to prescribe a new table (copy enclosed) for present
employees of the PSEB. The PSEB had, vide its circular dated
values for the calculation of commutation of pension to
4th September, 1999, (Circular No. 36 of 1998) adopted the
replace the present table incorporated as Annexure to
applicability of the Punjab Government Rules. Rule 11.5 of the
Chapter XI of Punjab Civil Service Rules Volume II. This G G Punjab Civil Service Rules, Vol.II dealing with the subject reads
table supersedes the existing table with immediate effect
as under :
and shall apply to all the cases of retirement arising on or
after 31.07.2003. “11.5 (1) The lump sum payable on commutation shall be
calculated in accordance with a table or tables of present
2. Annexure to Chapter XI of Punjab Civil Services
H H
values which shall be prescribed by the competent A A and was implemented with effect from 1st January, 1996. The
authority. State of Punjab, appellant herein, issued a circular dated 29th
July, 2003 replacing the existing table with a new table for
Note 1. - The lump payable on commutation to Government calculation of commutation of pension superseding the existing
employees who have served under more than one table. As already noticed, this circular contains the table of
Government when the commutation tables applied by the
B B commutation of pension. As is clear from the above referred
different Governments are not identical, shall be calculated circular dated 29th July, 2003, it had directed deemed
according to the commutation table of the Government substitution of Annexure to Chapter XI of the Punjab Civil
under whose rule making control they are, at the time of Services Rules, Volume II and stated that commutation table
retirement. In the case of Government employees who are was based on rate of interest of 8 per cent per annum
temporarily lent by one Government to another, the
commutation shall be according to the table of the lending C C (commutation value for pension to Re1/- per annum). However,
vide circular dated 31st October, 2006, this circular was
Government and in the case of those who are permanently superseded. The circular dated 31st October, 2006 revised the
transferred from one Government to another it shall be existing table of commutation of pension and the Governor of
according to the table of the Government to which their Punjab reduced the discount rate from existing 8 per cent to
services have been permanently transferred. 4.75 per cent and consequently revised the existing table in
D D
terms of Rule 11.5(2). As a result, employees who retired
Note 2. - In the event of the table of present values
between 31st July, 2003 and 30th October, 2006 are at a
applicable to an applicant having been modified between
disadvantageous position. The respondents cited illustrations
the date of administrative sanction to commutation and the
to show that they were placed at a disadvantageous position.
date on which commutation is due to become absolute,
The circular dated 29th July, 2003 is arbitrary and has no
payment shall be made in accordance with the modified E E reasonable nexus for making a classification between the
table, but it shall be open to the applicant if the modified
employees who retired during the above period and the
table is less favourable to him than that previously in force,
employees who retired prior to and /or after the cut off period.
to withdraw his application, by notice in writing despatched
Before the High Court, the appellant as well as the PSEB filed
within 14 days of the date on which he receives notice of
a reply in which facts were hardly disputed. In that reply, it was
modification. (2) The table of present value is given in F F stated that the law relied upon by the respondents before the
Annexure to this Chapter and will be applicable to all
High Court was not applicable and the claim of the said
Government employees.
respondents was generally denied. They prayed for dismissal
For the purpose of this rule, the age, in case of impaired of the writ petition.
lives, shall be assumed to be such age, not being less than
G G 6. The High Court, vide its judgment dated 21st July, 2008
the actual age as the certifying medical authority may
accepted the writ filed by the respondents and while allowing
direct.”
the writ petition, the High Court noticed that no justification or
5. The table of commutation of pension was prescribed by clarification had been provided by the State, while making a
the State Government on the recommendation made by the 4th feeble attempt to defend its stand and there was no rational
Pay Commission which was accepted by the State Government H H basis for providing the cut off dates between the period from
31st July, 2003 to 30th October, 2006. The following operative A A its financial liability, for good and valid economic
part of the judgment can usefully be reproduced at this stage : reasons had issued the circular dated 29th July,
2003. Reliance in this regard is placed upon the
“After hearing the counsel for the parties, we are of the judgment of this Court in the case of State of Bihar
considered opinion that this petition deserves to be v. Bihar Pensioner’s Samaj [(2006) 5 SCC 65] and
allowed and our opinion is further strengthened by the ratio B State of Punjab v. Amar Nath Goyal [(2005) 6 SCC
B
of law, laid down in V. Kasturi’s case (supra) which has 754].
been followed by Hoshiar Singh’s case (supra). The State
cannot be permitted to create two categories of retirees (d) Date of retirement by itself is a reasonable
by providing a cut off date as there is no rationale. classification and does not offend the doctrine of
equality. Reliance in this regard is placed upon
In view of the above, we allow the writ petition and quash C C Union of India v. P.N. Menon & Ors. [(1994) 4 SCC
the impugned circular dated 29.07.2003 and restore the 69]. Vide circular dated 29th July, 2003, an attempt
pension of the petitioner, in accordance with the revised had been made on behalf of the Government to
table, issued as per the Circular dated 31.10.2006 stabilize its financial position. It was a decision
(Annexure P-6).” taken in the larger public interest and can even be
D D supported by subsequent reasons. Reliance for this
7. Aggrieved from the above judgment of the High Court,
proposition is placed upon the case of Chairman,
the State of Punjab has filed the present appeal by way of
All India Railway Recruitment Board & Anr. v. M.
special leave challenging the legality and correctness of the
Shyam Kumar & Ors. [(2010) 6 SCC 614].
above judgment.
E E (e) Under Note 2 to Rule 11.5(1), the respondents had
8. On behalf of the appellant, it is contended that :
a choice to withdraw the request for commutation,
(a) the High Court has not correctly applied the if they were adversely affected within 14 days from
principle of law contained in the judgment of this the issuance of the circular dated 29th July, 2003
Court in the case of V. Kasturi v. Managing in terms of the Punjab Civil Service Rules.
Director, State Bank of India [1998 (5) SLR 629]. F F 9. On behalf of the respondents, it is contended that none
That case related to computation of pension and
of these arguments were raised either in the affidavits filed
not commuting of pension.
before the High Court or even during the course of hearing. No
(b) The circular was neither arbitrary nor violative of records were produced to substantiate any such plea. On the
Article 14 of the Constitution of India as there was contrary, it was a case of ‘no stand’ on behalf of the official
G G respondents as even noticed by the High Court. It is vehemently
rationale behind the decision of the State
Government which had been implemented by the argued that the date of retirement by itself is capable of
PSEB. providing a rational basis for issuance of such orders and the
same would affect the rights of the parties adversely. In this
(c) The State was suffering from serious financial regard reliance is placed on the cases of V. Kasturi (supra) and
crunch and the State with the intention to balance H H D.S. Nakara v. Union of India [(1983) 1 SCC 305]. According
to the respondents, the High Court has rightly applied the law A A 11. From the orders passed by this Court, it is clear that
as stated by this Court. Further, to substantiate their plea, it has while granting liberty to the State to file additional affidavit, no
been argued with some vehemence that no reasons are objection was raised by the respondents herein. Now, once the
disclosed in the circular and there is no rationale for such additional facts and grounds had been brought on record to
categorization. It is also the contention that an executive circular which the said respondents have already filed a rejoinder, they
cannot amend, alter or substitute an appendix or annexure B B cannot be permitted to raise the objection in regard to the new
which is the result of an exercise of statutory power. In this grounds being examined by the Court. There are certainly
regard, reference is made to the judgment of this Court in the lapses on the part of the State, but the questions raised before
case of Dr. Rajinder Singh v. State of Punjab [(2001) 5 SCC us are not only substantial legal questions but are also likely to
482]. The appellant cannot be permitted to take new grounds have far reaching consequences. It is argued that the circular
before this Court for the first time and the appeals deserve to C C dated 29th July, 2003 has been issued by the State of Punjab
be dismissed. and the same having been quashed, there is every likelihood
that all the employees of the State of Punjab, including various
10. From the record, it is clear that none of these
corporations, would raise similar claims. The grounds with
arguments were taken in the counter affidavit or even appear
regard to Note 2 of Rule 11.5, financial crunch of the State and
to have been addressed before the High Court during the
there being proper rationale for fixation of the cut off period (31st
course of arguments. The substantial pleas are being sought D D
July, 2003 to 30th October, 2010) are matters which require
to be raised before this Court for the first time. It requires to
discussion and determination by the Court in accordance with
be noticed at this stage that vide order dated 16th December,
law. Equally, the pleas raised by the respondents require proper
2010 passed by a Bench of this Court after hearing, liberty was
examination. There is no doubt that the circular dated 29th July,
granted to the State to file additional affidavit. The affidavit
2003 does not contain any reason, whatsoever, for passing a
dated 7th January, 2011 was filed on behalf of the State taking E E directive, which enmass adversely affects the people who have
the ground that the State of Punjab had faced an acute financial
retired in the period between 31st July, 2003 to 31st October,
crisis in the year 2003 and, in fact, was in a virtual debt trap.
2006. Additional affidavit now filed before this Court, with the
Since the commutation of pension is essentially loan/advance
leave of the Court, does provide reasons and some justifiable
against the future payments of the monthly pension, the State
grounds in support of the circular. All that we propose to say is
Government could ill-afford to raise further debt at higher rate F F that the contentions raised by the respective parties are worthy
of interest to make such payments to employees at
of consideration in accordance with law.
concessional effective rate of interest which was as low as 4.75
per cent per annum. The chart showing figures of fiscal 12. The judgment impugned in the present petition, in fact,
indicators of Punjab from 2002-03 to 2006-07 was also does not even discuss the plea of arbitrariness and
annexed to this affidavit. Still another affidavit was filed with the discrimination in its proper perspective. The Court also has not
G G
leave of the Court dated 21st April, 2011 by the Deputy deliberated upon as to whether the law stated by this Court in
Secretary, Department of Finance, Punjab, Chandigarh bringing the case of V. Kasturi (supra) to the facts of the case in hand
on record the policy of the Government, formula adopted for or not, particularly with reference to the contentions raised.
commutation factor and giving facts and figures as to how the Another aspect which could be considered by this Court on the
circular dated 29th July, 2003 came to be issued. basis of the material produced before it, was whether the format
H H
STATE OF PUNJAB v. GIAN CHAND & ORS. 1113 [2012] 11 S.C.R. 1114
to a statutory rule can be amended, altered or substituted by A A RADHAKRISHNA NAGESH
an executive order. v.
STATE OF ANDHRA PRADESH
13. For lack of proper reasoning in the judgment of the
(Criminal Appeal No.1707 of 2009)
High Court, in view of the additional pleas raised before this
Court which have significant ramifications in law and with regard DECEMBER 13, 2012
to the liability of the State, we are left with no option but to set B B
aside the judgment of the High Court under appeal and remit [SWATANTER KUMAR AND GYAN SUDHA MISRA, JJ.]
the matter to the High Court for fresh decision in accordance
with law. We would request the High Court to consider all the Penal Code, 1860 – ss.376(2)(f) and 363 – Rape – Of
arguments that have been noticed by us above. All the affidavits minor girl – Conviction of accused-appellant – Challenge to
placed on record of this Court shall also be placed before the C C – Plea of accused that serious contradictions between ocular
High Court for its consideration. Another reason which can be and medical evidence materially affected the case of the
stated in support of the view that we are taking is that the prosecution – Held: Not tenable – In order to establish conflict
determination of the contentions raised before this Court for the between the ocular evidence and the medical evidence, there
first time may deprive either of the parties of a right to appeal has to be specific and material contradictions – Absence of
to this Court. Deprivation of right to appeal can be construed D D injuries on the body of the victim girl (PW2) not of any
as prejudicial to the rights and interests of the parties to the advantage to the accused – Absence of injuries on her back
lis. and neck can be safely explained by the fact that she was
lured into the offence rather than being taken by using
14. Accordingly, the appeal is partly allowed and the matter
physical force on her – Preparation, attempt and actual act
is remitted to the High Court, however, with cost of Rs.50,000/
E E on the part of the accused clear from the fact that he had
- to be paid to the respondent Nos.1 to 26 in equal proportion
purchased bangles which he had promised to her and
cost being conditional to the hearing of the writ petition, in
thereafter had taken her into the tennis court store room, the
default thereto, the appeal preferred by the State shall stand
key of which was with him – This is also corroborated from the
dismissed.
recovery evidence – Merely because, some fact was not
CAs @ SLP (C) Nos.18734-18735/07, 4036/07 and 7474/ F recorded or stated by the doctor at a given point of time and
F
07 subsequently such fact was established by the expert report,
15. As the questions arising in these cases are different the FSL Report, would not by itself substantiate the plea of
and the High Court has dealt with these questions on merits, contradiction or variation – No reason to disbelieve the
the arguments raised in SLP Nos. Civil Appeals @ SLP (C) statement of PW2 that she knew the accused and that he
Nos. 25856/08, 18878/10, 22841/09, 23121/10, 23607/10, incited her and lured her to buying bangles and then took her
G G
25387/12, 27327/08, 3110/12 and 9569/10 are not available to the storeroom where he committed rape on her – PW3 had
to the State of Punjab in these cases. Thus, these cases are seen the accused taking PW2 inside the tennis court store
ordered to be detached from this batch and be listed for room and bolted the door from outside, and then went to report
hearing independently. the matter – On way, he met PW1 (a police official), who
H H 1114
K.K.T. Appeals partly allowed.
RADHAKRISHNA NAGESH v. STATE OF ANDHRA 1115 1116 SUPREME COURT REPORTS [2012] 11 S.C.R.
PRADESH
accompanied him to the store room, brought both the A A offence of rape, but the contrary is not true i.e. even if there
accused and PW2 to the police station, and got an FIR is no penetration, it does not necessarily mean that there is
registered on his own statement, the investigation of which was no rape – Penetration may not always result in tearing of the
conducted by PW11 – No reason to disbelieve the hymen and the same will always depend upon the facts and
statements of PW1, PW2, PW3, PW5(mother of PW2) and circumstances of a given case – In the case at hand, it was
PW11, particularly when they stood lengthy cross-examination B B clear that there was limited penetration due to which probably
without any material damage to the case of the prosecution. the hymen of the victim girl (PW2) was not ruptured.
Penal Code, 1860 – ss.376(2)(f) and 363 – Rape – Of Appeal – Appeal against acquittal – Interference with –
minor girl – Conviction of accused-appellant – Challenge to Principles – Held: The appellate Court has to be more
– Plea of accused that there was no direct evidence cautious while dealing with the judgment of acquittal –
C C However, it does not mean that the appellate Court cannot
connecting him to the commission of the crime – Held: Not
tenable – On facts, presence of the element of mens rea on disturb the finding of acquittal – All that is required is that there
part of the accused cannot be denied – He had fully prepared should be a compelling rationale and also clear and cogent
himself – He first lured the victim girl (PW2) not only by evidence, which was ignored by the Trial Court to upset the
inciting her, but even by actually purchasing bangles for her finding of acquittal – On facts, the course of appreciation of
– Thereafter, he took the girl to a room where he threatened D D evidence and application of law adopted by the Trial Court
her of physical assault as a consequence of which the girl did was not proper – Trial Court failed to appreciate the evidence
not raise protest – This is why no marks of physical injury on record cumulatively and in its correct perspective by
could be noticed on her body – Absence of injuries in the ignoring the material piece of evidence and by improper
context of the present case would not justify drawing of any appreciation of evidence – It recorded findings which are on
adverse inference against the prosecution, but on the contrary E E the face of it unsustainable – This error was rightly corrected
would support the case of the prosecution – Direct link of the by the High Court – No reason to interfere with the judgment
accused with the commission of the crime well established by of conviction recorded by the High Court.
the statement of the witnesses, the recoveries made, the
Medical Report and the FSL Report –Statement of PW2 The prosecution case was that the accused-
credible, truthful and, thus, can safely be relied upon – Such F F appellant, a ball picker in the University tennis court,
statement fully corroborated by the statements of PW1 and enticed PW2, a maid working in the staff quarters of the
PW3, who were independent witnesses and had no personal University, on the pretext of purchasing gold colour
interest or motive of falsely implicating the accused or plastic bangles for her and when she agreed to
supporting the case of the prosecution. accompany him, he bought her the bangles and then
G took her inside the store room near the tennis court and
G
Penal Code, 1860 – s.376 and Explanation to s.375 – committed rape on her against her will. The appellant was
Rape – Penetration – Intact hymen – Inference – Held: The charged with having committed offences under Sections
mere fact that the hymen was intact and there was no actual 363 and 376 (2)(f) IPC. The trial court acquitted the
wound on her private parts not conclusive of the fact that she appellant, but the High Court reversed the order of
was not subjected to rape – Penetration itself proves the
H H
PRADESH
acquittal and convicted him under Sections 363 and A A floor of the room and passed liquid like urine into her
376(2)(f) IPC, and therefore the instant appeal. private parts. In the meanwhile, she stated that she felt
the starch in her private parts. At that time, one rickshaw
The appellant challenged his conviction inter alia on puller, PW3 came and knocked at the door. The accused
the following grounds: 1) that the High Court exceeded abused him in a filthy language and later the police came
its jurisdiction by interfering with the judgment of B B to the room. She further narrated that it was PW1 (Sub-
acquittal of the Trial Court which was very well-reasoned, Inspector of Police, Traffic P.S.) who had taken her and
based upon proper appreciation of evidence and in the accused to the police station, where she was
consonance with the settled principles of law; 2) that examined by the Police. The langa of PW2 was seized by
there were serious contradictions between the ocular and the police and was sent to hospital for examination. She
the medical evidence which materially affected the case
of the prosecution; 3) that there was no sexual
C C stated that her mother (PW5) was also working as a maid
in the red building itself. Despite a lengthy cross-
intercourse between the appellant and the victim and the examination, she stood to her statement and did not cast
prosecution had not been able to establish any link any doubt on the statement made by her in her
between the commission of the alleged offence and the examination-in-chief. [Paras 10, 11] [1134-B-G]
appellant and 4) that the case of the prosecution was
based upon the sole testimony of the victim. D D 1.3. When PW2 was taken to the hospital, she was
examined by Dr. PW8, a Professor of Forensic Medicine
Dismissing the appeal, the Court in a Medical College and also by PW9, an Assistant
Professor in a Maternity Hospital. According to PW9, the
HELD: 1.1. There is no merit in the contention raised
girl had washed herself after the incident. PW9 also stated
on behalf of the appellant with regard to discrepancy in E E that considering the age of the victim and on seeing that
the medical and the ocular evidence. [Para 20] [1138-D]
the parts were tender to touch, she could say that there
1.2. PW2 was 11 years old at the time of occurrence, was an attempt to rape the victim girl. Since, according
while she was 12 years old, when her statement was to PW9, the girl had washed herself after the incident, the
recorded in the Court. After the Court was convinced of doctor had to reserve her final opinion till the Chemical
the fact that she is competent to make the statement, the F F Analyst’s Report (FSL Report). The FSL Report was Ext.
same was recorded. In her statement, she stated that she P.6, while the Wound Certificate of victim girl was Ext.
was working as a maid in the staff quarters of the P.5. According to the FSL Report, semen was detected
University, known as the red building. According to her, on Items 1, 2, 4, 5 and 6 and the same was of human
she knew the accused-appellant and he was in the habit origin. Saliva of human origin was detected on Item No.
of escorting children to the school. The accused had G G 3. The Chemical Analyst also detected semen and
taken her to the tennis court, promised her that he would spermatozoa on Item Nos. 1, 2, 4, 5 and 6 and on Item No.
buy bangles for her and after purchasing the bangles the 3 saliva was found. Item No. 1 was torn brown colour
accused took her to a room in the tennis court. The polyester langa with dirty stains which the girl was
accused closed the door of the room, lifted her langa, wearing. Item No. 2 was a torn grey colour mill made cut
removed his own pant and underwear, put her on the H H drawer with dirty stains which the accused was wearing.
PRADESH
Item No. 3 and Item No. 4 were the turbid liquid which was A A actual act on the part of the accused is further clear from
present on the cloth and in a bottle respectively. Item No. the fact that he had purchased bangles which he had
5 was a cotton swab and Item No. 6 were two glass slides promised to her and thereafter had taken her into the
which were sent for opinion and via FSL Report, Ext. P.6, tennis court store room, the key of which was with him.
the opinion was received. From the above evidence, it is This is also corroborated from the fact that even vide Ext.
not feasible to state with certainty that there is any conflict B B P.3, the langa as well as the bangles, coated with golden
between the medical and the ocular evidence. No fault colour were recovered by the Investigating Officer, PW11.
can be found in the statement of Dr. PW9, who waited to [Para 16] [1136-D-F]
give her final opinion till she received the FSL Report.
[Paras 11, 12, 13 and 14] [1134-G; 1135-A-H; 1136-A] 1.7. An eleven year old girl and that too from a small
place and serving as a maid could hardly be aware of the
C C technicalities of law in relation to an offence of sexual
1.4. According to the medical evidence and
statements of PW8 and PW9, the victim was 11 years old assault. She felt very shy while making her statement in
at the time of occurrence and her private parts were the Court, which fact was duly noticed by the Court. [Para
tender to touch. The doctor, PW9 had reserved her final 17] [1136-F-G]
opinion awaiting the FSL Report. According to the FSL
D D 1.8. In order to establish a conflict between the ocular
Report, the langa of the girl as well as the drawer of the
evidence and the medical evidence, there has to be
accused were containing semen of human origin. The
specific and material contradictions. Merely because,
slides which contained the swab taken from the vagina
some fact was not recorded or stated by the doctor at a
of the girl also showed presence of semen of human
given point of time and subsequently such fact was
origin. Noticeably these reports, in relation to Items 1, 2,
4, 5 and 6 came despite the fact that the girl had washed E E established by the expert report, the FSL Report, would
not by itself substantiate the plea of contradiction or
herself after the occurrence. [Para 24] [1139-D-E]
variation. Absence of injuries on the body of the
1.5. It is a settled principle of law that a conflict or prosecutrix would not be of any advantage to the
contradiction between the ocular and the medical accused. [Para 18] [1136-G-H; 1137-A-B]
evidence has to be direct and material and only then the F F 1.9. The possibility of some variations in the exhibits,
same can be pleaded. Even where it is so, the Court has
medical and ocular evidence cannot be ruled out. But it is
to examine as to which of the two is more reliable,
not that every minor variation or inconsistency would tilt
corroborated by other prosecution evidence and gives
the balance of justice in favour the accused. Where the eye
the most balanced happening of events as per the case
witness account is found credible and trustworthy, medical
of the prosecution. [Para 15] [1136-B-C] G G opinion pointing to alternative possibilities may not be
accepted as conclusive. [Para 19] [1137-C-D; 1138-A]
1.6. The absence of injuries on the back and neck of
the victim girl can safely be explained by the fact that she 1.10. There is no reason for the Court to disbelieve
was lured into the offence rather than being taken by the statement of PW2 that she knew the accused and that
using physical force on her. The preparation, attempt and
H H the accused incited her and lured her to buying bangles
PRADESH
and then took her to the storeroom where he committed A A that there is no rape. The Explanation to Section 375 IPC
rape on her even threatened her of physical assault. has been worded by the legislature so as to presume that
PW3, the rickshaw puller who was standing at the gate if there was penetration, it would be sufficient to
of the University, had seen the accused taking the young constitute sexual intercourse necessary for the offence
girl towards the tennis court store room. Suspecting that of rape. Penetration may not always result in tearing of
he would do something wrong with the girl, he went to B B the hymen and the same will always depend upon the
the room and knocked the door. The door was not facts and circumstances of a given case. The Court must
opened by the accused, however, he persisted with the examine the evidence of the prosecution in its entirety
knocking. Thereafter the accused opened the door and and then see its cumulative effect to determine whether
abused him, but PW3 maintained his presence of mind the offence of rape has been committed or it is a case of
and bolted the door from outside, leaving the accused C C criminal sexual assault or criminal assault outraging the
and the prosecutrix inside the room and went to report modesty of a girl. [Para 25] [1139-F-H; 1140-A-B]
the matter. On his way, he met PW1, who accompanied
him to the store room, brought both the accused and the 2.2. It can safely be concluded in the case at hand
victim to the police station, got an FIR registered on his that there was limited penetration due to which probably
own statement, the investigation of which was conducted the hymen of the victim girl was not ruptured. [Para 28]
D D [1143-F]
by PW11, the Inspector of Police. [Para 22] [1138-F-H;
1139-A-B]
Guddu @ Santosh v. State of Madhya Pradesh (2006)
1.11. There is no reason as to why this Court should Supp. 1 SCR 414; Tarkeshwawr Sahu v. State of Bihar (now
disbelieve the statements of PW1, PW2, PW3, PW5 and Jharkhand) (2006) 8 SCC 560: 2006 (7) Suppl. SCR 10 –
PW11, particularly when they stood the lengthy cross- E E relied on.
examination without any material damage to the case of
3.1. The Court should adhere to a comprehensive
the prosecution. [Para 23] [1139-B-C]
approach, in order to examine the case of the
Dayal Singh and Others v State of Uttaranchal [(2012) 7 prosecution. But as regards the facts and circumstances
SCALE 165] – relied on. of the present case, the presence of the element of mens
F F rea on part of the accused cannot be denied. He had fully
2.1. The mere fact that the hymen was intact and there prepared himself. He first lured the girl not only by inciting
was no actual wound on her private parts is not her, but even by actually purchasing bangles for her.
conclusive of the fact that she was not subjected to rape. Thereafter, he took the girl to a room where he threatened
According to PW9, there was a definite indication of her of physical assault as a consequence of which the
attempt to rape the girl. Also, later semen of human origin G G girl did not raise protest. This is why no marks of physical
was traceable in the private parts of the girl, as indicated injury could be noticed on her body. Absence of injuries
by the FSL Report. This would sufficiently indicate that in the context of the present case would not justify
she had been subjected to rape. Penetration itself proves drawing of any adverse inference against the
the offence of rape, but the contrary is not true i.e. even prosecution, but on the contrary would support the case
if there is no penetration, it does not necessarily mean H H of the prosecution. [Para 28] [1143-F-H; 1144-A]
PRADESH
3.2. As per the facts and circumstances of the A A innocent till proved guilty and secondly that he is entitled
present case, there is a direct link of the accused with the to a fair trial and investigation. Both these facets attain
commission of the crime. Such conclusion can well be even greater significance where the accused has a
established by the statement of the witnesses, the judgment of acquittal in his favour. A judgment of
recoveries made, the Medical Report and the FSL Report. acquittal enhances the presumption of innocence of the
It does not leave any doubt that the accused has B B accused and in some cases, it may even indicate a false
committed the offence with which he was charged. [Para implication. But then, this has to be established on
31] [1146-B-C] record of the Court. However when one mentions about
the Court being cautious, it does not mean that the
3.3. There is nothing on record to show that the appellate Court cannot disturb the finding of acquittal. All
statement of PW2 is either unreliable or untrustworthy.
On the contrary, in light of the given facts, the statement C C that is required is that there should be a compelling
rationale and also clear and cogent evidence, which has
of PW2 is credible, truthful and, thus, can safely be relied been ignored by the Trial Court to upset the finding of
upon. Statement of PW2 is fully corroborated by the acquittal. [Paras 34, 35] [1147-A-D]
statements of PW1 and PW3. They are independent
witnesses and have no personal interest or motive of 4.2. In the facts of the present case, the High Court
falsely implicating the accused or supporting the case of D D has recorded reasons while interfering with the judgment
the prosecution. PW2 is a poor young girl who works as of acquittal by the Trial Court. The Trial Court attempted
a maid servant. PW3 coming to her rescue and PW1 to create a serious doubt in the case of the prosecution
reaching the spot without any delay, saved the girl from on the basis of the statement of PW3, that he does not
further assault and serious consequences. The High know what PW2 narrated to PW1, when he made
Court has not based the conviction of the accused solely E E inquiries. This was not a proper way to appreciate the
on the statement of PW2. Even if it were so, still the evidence on record. The statement of a witness must be
judgment of the High Court will not call for any read in its entirety. Reading a line out of context is not
interference because the statement of PW2 was reliable, an accepted canon of appreciation of evidence. Another
trustworthy and by itself sufficient to convict the accused, aspect of the statement of PW3 which the Trial Court had
by virtue of it being the statement of the victim herself. F F a doubt with, was, as to how PW3 had noticed the
[Para 32, 33] [1146-D-G] accused taking away the minor girl along with him to the
tennis store room and how he suspected some foul play.
O.M. Baby (Dead) by L.Rs. v. State of Kerala JT 2012 PW3 admittedly was a rickshaw puller and was standing
(6) SC 117 and State of Himachal Pradesh v Asha Ram AIR at the gate of the University. The tennis store room was
2006 SC 381: 2005 (5) Suppl. SCR 280 – relied on.
G G quite near to the gate. PW3, quite obviously knew the
accused as well as PW2. The conduct of PW3 in the given
4.1. It is true that the appellate Court has to be more
circumstances of the case was precisely as it would have
cautious while dealing with the judgment of acquittal.
been of a person of normal behaviour and was not at all
Under the Indian criminal jurisprudence, the accused has
extra-ordinary in nature, particularly in the late hours of
two fundamental protections available to him in a criminal
trial or investigation. Firstly, he is presumed to be H H evening. Still, another fact that was taken into
PRADESH
consideration by the Trial Court while acquitting the A A recorded by the High Court. [Para 42] [1154-A-C]
accused was that Ext. P.5 neither showed any injuries on
the body nor reflected that rape was attempted on the Ravi Kapur v. State of Rajasthan JT 2012(7) SC 480 –
victim. In the considered view of this Court, the course relied on.
of appreciation of evidence and application of law Case Law Reference:
adopted by the Trial Court was not proper. It was B B
expected of the Trial Court to examine the cumulative (2012) 7 SCALE 165 relied on Para 18
effect of the complete evidence on record and case of the
(2006) Supp. 1 SCR 414 relied on Para 26
prosecution in its entirety. [Paras 36 to 40] [1152-F-H;
1153-A-E] 2006 (7) Suppl. SCR 10 relied on Para 27
4.3. Equally without merit is the contention that Ext. C C JT 2012 (6) SC 117 relied on Para 29
P.5 which was authored by PW9 upon examination of the
2005 (5) Suppl. SCR 280 relied on Para 30
victim neither recorded any injuries on her person nor the
fact that she was raped. It is for the reason that PW9 had JT 2012(7) SC 480 relied on Para 35
not recorded any final opinion and kept the matter
pending, awaiting the FSL Report. Furthermore, in Ext. D D CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
P.5, she had noticed that her parts were tender to touch. No. 1707 of 2009.
The vaginal swabs and vaginal wash were taken and
slides were preserved. She was also sent to the hospital Court of Judicature of Andhra Pradesh at Hyderabad in
for further examination. Thus, Ext. P.5 cannot be looked
Criminal Appeal No. 1007 of 1999.
into in isolation and must be examined in light of other E E
ocular and documentary evidence. In the peculiar facts Ch. Leela Sarveswar, V. Sridhar Reddy and V.N.
and circumstances of the case, it was not even expected Raghupathy for the Appellant.
of PW1 or the Investigating officer PW11 to examine the
victim particularly in relation to her private parts. Absence D. Mahesh Babu, Suchitra, Amit, Balashivdu and D.
of such recording does not cause any infirmity to the F F Bharathi Reddy for the Respondent.
case of the prosecution much less a reason for acquitting
The Judgment of the Court was delivered by
the accused. [Para 41] [1153-E-H; 1154-A]
SWATANTER KUMAR, J. 1. The present appeal is
4.4. The trial Court has failed to appreciate the
directed against the judgment dated 23rd January, 2009
evidence on record cumulatively and in its correct
G G passed by the Division Bench of the High Court of Judicature
perspective by ignoring the material piece of evidence
at Hyderabad, Andhra Pradesh whereby the order of acquittal
and improper appreciation of evidence. It has recorded
dated 11th February, 1999 passed by the Trial Court was
findings which are on the face of it unsustainable. This
reversed. The appellant, while impugning the judgment under
error was rightly corrected by the High Court, and there
appeal, raised the following contentions: -
is no reason to interfere with the judgment of conviction
H H
PRADESH [SWATANTER KUMAR, J.]
1. The High Court could not have interfered with the A A standing alone outside the red building. It may be noticed, that
judgment of acquittal of the Trial Court which was the mother of the victim girl, namely Sampuramma, PW5, was
very well-reasoned, based upon proper working as a maid-servant in the red building attached to the
appreciation of evidence and was in consonance University.
with the settled principles of law. The High Court,
thus, has exceeded its jurisdiction by interfering with 4. A. Haritha, the victim belonged to the Scheduled Caste
B B category and was about 11 years of age at the time of the
the judgment of acquittal of the Court of Sessions.
incident. The accused asked her to come along with him. At
2. There are serious contradictions between the first she refused but the accused enticed her on the pretext of
ocular and the medical evidence which materially purchasing gold colour plastic bangles. When she agreed to
affect the case of the prosecution. Therefore, the accompany him, he bought her the bangles and then took her
accused is entitled to a reversal of the judgment of C C to the store room near the tennis court, the key to which he was
the High Court. possessing. He opened the lock and took the victim inside the
room and committed rape on her against her will. In fact, he
3. There was no sexual intercourse between the even threatened to assault her. One Narayanaswamy, PW3, a
appellant and the victim. The prosecution has not rickshaw puller, who was waiting by the side of Gate No. 3 of
been able to establish any link between the D D the S.V. University noticed the accused taking the victim into
commission of the alleged offence and the the store room and thus, became suspicious. He went to the
appellant. store room and tapped the door several times. However, the
accused did not open the door at first, but upon further
4. The case of the prosecution is based upon the sole
insistence of PW3, he did so. PW3 saw the victim girl weeping.
testimony of the victim. All these circumstances,
examined cumulatively, entitle the accused for an E E The accused slammed the door. Suspecting that the accused
might have done some wrong to the minor girl, Narayanswami,
order of acquittal.
PW3 bolted the door from outside and ran to inform the
5. Lastly, the punishment awarded to the accused is authorities and/or the police. On his way he met Sub-Inspector
too harsh. of Police, Traffic P.S., Tirupati, Sh. S.M. Ramesh, PW1, who
F F was standing near the NCC Office traffic point and informed
2. These contentions have been raised with reference to him of the incident. Immediately, PW1 along with another Traffic
the case brought on record by the prosecution. The factual R.S.I, R. Sivanandakishore, PW4, accompanied by PW3 went
matrix of the case as per the prosecution is: to the said storeroom, opened the door from outside and found
the victim girl A. Haritha. She complained of pain in her vaginal
3. The accused/appellant was working as a ball picker in
S.V. University tennis court, Tirupati, and in that capacity he was G G region. PW1 took the victim girl as well as the accused to the
SVU Campus Police Station and made a complaint, Ex. P.1,
having the custody of the key to the storeroom situated on the
based upon which FIR, Ex. P.7 was registered under Sections
south-east of the tennis court. The tennis net and other articles
363 and 376 (2)(f) of the Indian Penal Code 1860 (for short
were stored in this place. On 7th September, 1997 at about
‘IPC’) and Section 3(2)(v) of the Schedule Castes and the
7.00 p.m., the accused saw a girl named A. Haritha, who was
Schedule Tribes (Prevention of Atrocities) Act, 1989.
H H
5. Upon this report, Sub-Inspector of Police, B. A A the accused person who was present in the court on the
Katamaraju, PW10 undertook the investigation. The accused date of his giving evidence. Even he has not divulged
was sent to the SV RR GG Hospital, Tirupati for medical anything about P.W.2 informing the incident to P.W.1. As
examination. The victim girl was sent to the Government such, the evidence of PW.1 that the victim girl narrated the
Maternity Hospital, Tirupati, for the same purpose and also for incident to him, is not corroborated by any one of the
the assessment of her age. Certain articles, including the cut B B witnesses.
drawer of accused containing seminal stains, skirt of the victim
girl etc. were seized and were sent to the laboratory. The (33) It is an admitted fact that at the scene of offence,
Assistant Director, RFSL Anantpur, after analysing the material P.W.1 did not prepare any statements, and he simply
objects, detected semen on the clothes and on the vaginal brought both the accused and P.W.2 to the Police Station.
swabs of the victim, collected and preserved by the Medical But, it is (sic) not unnatural on the part of P.W.1 and other
C C
Officer, and also on the underwear of the accused. The police personnel who went to the scene of offence without
Investigating Officer recorded the statement of various any pen or papers on their hand, as it is evident from the
witnesses and completed the investigation. Upon completion evidence of P.W.3 that immediately after informing the
of the investigation, the Inspector of Police, PW11 presented incident to P.W.1 they went to the scene of offence. In such
a report under Section 173(2) of the Code of Criminal case we cannot expect P.W.1 to procure paper and pen
D D to prepare any statement on the spot. Hence, in this
Procedure 1973 (for short ‘the CrPC) for offences under
Sections 363 and 376 (2)(f) of IPC. As the alleged offences context, the version of learned counsel for accused, that
were triable exclusively by the Court of Sessions, the accused as P.W.1 failed to record any police proceedings or
was committed to the Court of Sessions, where he faced the statement at the spot, cannot go against the prosecution
trial. The prosecution examined 12 witnesses being PW1 to case.
E E
PW12 and exhibited documents P1 to P9 and material objects
(34) Nextly, it may be pointed out that though P.W.10 the
(M.Os.) 1 to 3 in its effort to bring home the guilt of the accused.
S.I. of the Police registered the case, he did not try to
As already noticed the Trial Court vide its judgment dated 11th
record the statements of P.Ws 1 to 3 though they were
February, 1999 held the accused not guilty of any offence and
available at that juncture. Till arrival of P.W.11, the
acquitted him. While recording the finding of acquittal, the Trial
F F Inspector of Police, the statements were not recorded.
Court found certain material improbabilities and contradictions
When P.W.10 himself registered the case, why he has not
in the statements of the witnesses. Since we have to deal with
recorded the statements of the witnesses available at the
the judgment of reversal of an order of acquittal, it will be useful
spot, was not explained by him., it is only P.W.11 who
for us to notice some relevant extracts of the judgment which
received express F.I.R. from P.W.10 recorded statements
would indicate as to what really weighed with the Trial Court
G of P.Ws. 1 and 2, and later sent the victim girl to the
while granting acquittal to the accused. G
hospital for medical examination.
“(32) In the evidence of P.W.3, he says that he does not
(35) When coming to the evidence of P.W.2, though she
know what P.W.2 informed to P.W.1 when he made
narrated the incident and stated in her chief – examination
enquiries. The evidence of P.W.4 is of no use. As seen
that the accused removed his pant and underwear and laid
from his evidence, it is manifest that he is unable to identify H H
her on the floor and passed liquid like urine in her private A A XXXX XXXX XXXX XXXX XXXX
part, her admission in the cross-examination that
Narayanswamy P.W.3 tutored her to depose in this case (43) Hence, it is manifest that for sustaining tenderness on
and also at the request of P.W.1, she deposed about the private parts of the victim girl, there could be some
purchasing of bangles by the accused and taken her to the other reasons and those reasons are not ruled out by
room, makes her entire evidence lack of credibility and B P.W.9. Admittedly, in the wound certificate furnished by her
B
inadmissible. under Ex.P.5, she has not mentioned that there was an
attempt on the person of P.W.2 victim girl. Further, there
(36) In this context, the learned counsel for accused is no record to show that she obtained acknowledgment
submitted that in view of the particular admission made by from the police for handing over the material objects
P.W.2 that she was tutored by P.W.3, the evidence of collected by her at the time of examination. She collected
C C
P.W.2 becomes worthless and inadmissible. In this regard, vaginal swab and also vaginal washings. Further, on her
he placed reliance upon a decision reported in “Ramvilas examination, she found the hymen of the victim girl was
and others, Appellants. Vs. State of Madhya Pradesh, intact and there was no laceration or congestion on
Respondent” (1985 Crl.L.J. Page 1773), wherein Their fourchette.
Lordships held that, when the statement was narrated to
the witness just before entering into the witness box, the D D (59) But, in this case on hand, the evidence of P.W.2 the
evidence of such witness is inadmissible in view of section prosecutrix is of no avail in view of her admission that she
162 Cr.P.C. because the fact remains that it was narrated was tutored by P.W.3 before her giving evidence. Hence,
to the witness for the purpose of giving evidence at the trial the above said citation also cannot be made applicable
and that tantamounts to making use of the statement at the to the present facts of the case.
trial which is prohibited by section 162 Cr.P.C. E E
(70) In this case, what is important is, that, though P.W.2
XXXX XXXX XXXX XXXX XXXX narrated the incident and stated that the accused took her
to the tennis room and passed urine like substance on her
(38) When coming to the evidence of P.W.3, it goes to private part, her own admission that she was tutored by
show that he noticed the accused taking away a minor girl F F P.W.3, demolishes the credibility of the victim girl. Hence,
along with him to the tennis court. Though he suspected when the very direct evidence is doubtful in nature, the
some foul play, he did not try to prevent the accused from evidence of P.W.3 that he saw the accused taking away
taking the girl into the room of tennis court. This conduct the girl along with him, and also P.W.1 and other noticing
of P.W.3 is not natural in those circumstances. the victim girl along with the accused in the tennis court
G G room, it also not much helpful.
(39) The evidence of P.W.5, the mother of victim girl goes
to show that she came to know the incident after the victim (71) Further as seen from the record, though P.Ws. 1 to 5
girl and the accused were brought to Police Station. were examined by P.W.11 on the date of incident itself,
Hence, she is also not a direct eye-witness. all the said statements were sent to the court only on
28.1.1998. The alleged occurrence is on 7.9.1997. Hence,
H H
the sending statements to the court at a belated stage, has A A made to the statement of PW2, the prosecutrix, where she
the effect of losing the spontaneity of the statements and states that she was subjected to rape, but according to the
further, admittedly the statement of P.W.2 recorded by doctor, PW9 and the Medical Report, Ext. P.5, neither was she
P.W.1 was also not read over to her. Hence, in these subjected to sexual intercourse nor was there any penetration.
circumstances, the benefit of doubt should be given to the
B 10. PW2 was 11 years old at the time of occurrence, while
accused. Hence, this point is answered against the B
she was 12 years old, when her statement was recorded in the
prosecution.”
Court. After the Court was convinced of the fact that she is
6. Besides the above, the Trial Court had also expressed competent to make the statement, the same was recorded. In
its doubt in relation to the authenticity of Ex.P.9, the wound her statement, she stated that she was working as a maid in
certificate of accused, issued by the Chief Medical Officer, SV the staff quarters of S.V. University, known as the red building.
C C According to her, she knew the accused and he was in the
RR GG Hospital, Dr. V.V. Pandurana Vittal, PW12. There were
certain corrections as referred to in paragraph 52 of the habit of escorting children to the school. The accused had taken
judgment in this regard. The High Court disturbed the above her to the tennis court, promised her that he would buy bangles
judgment of the Trial Court and found the accused guilty under for her and after purchasing the bangles the accused took her
Sections 363 and 376(2)(f) of IPC and convicted him to to a room in the tennis court. The accused closed the door of
D D the room, lifted her langa, removed his own pant and
undergo rigorous imprisonment for three years and to pay a fine
of Rs.1000/- and in default of payment, to undergo simple underwear, put her on the floor of the room and passed liquid
imprisonment for three months under Section 363 of IPC. like urine into her private parts. In the meanwhile, she stated
Accused was sentenced to undergo rigorous imprisonment for that she felt the starch in her private parts. At that time, one
10 years and also to pay a fine of Rs.2000/-, and in default of rickshaw puller, PW3 came and knocked at the door. The
payment, to undergo simple imprisonment for six months for the E E accused abused him in a filthy language and later the police
offence under Section 376 (2)(f) of IPC. The substantive came to the room. She further narrated that it was PW1 who
sentences were directed to run concurrently. had taken her and the accused to the police station, where she
was examined by the Police.
7. Aggrieved from the judgment of conviction and order of
sentence passed by the High Court, the accused has filed the F F 11.Her langa was seized by the police and was sent to
present appeal. hospital for examination. She stated that her mother was also
working as a maid in the red building itself. We must notice that
8. We would prefer to discuss the first argument advanced despite a lengthy cross-examination, she stood to her
on behalf of the appellant as the last because it would primarily statement and did not cast any doubt on the statement made
depend upon the view we take upon appreciation of the by her in her examination-in-chief. When she was taken to the
G G
evidence and the case of the prosecution in its entirety. hospital, she was examined by Dr. G. Veeranagi Reddy, PW8,
who stated that he was working as a Professor of Forensic
9. The second contention on behalf of the appellant is that Medicine in the S.V. Medical College, Tirupati and that on 13th
there is a clear conflict between the medical evidence and the September, 1997, he had examined a girl A. Haritha for the
ocular evidence which creates a serious doubt in the case of purposes of finding out her age. He stated as follows:-
the prosecution. To buttress this contention, reference has been H H
“2. On physical mental and radiological examination A A certainty that there is any conflict between the medical and the
I am of the opinion of that the age of Haritha is between ocular evidence. One cannot find any fault in the statement of
10 and 11 years. Ex. P.4 is the certificate.” Dr. P. Vijyalakshmi, PW9, who waited to give her final opinion
till she received the FSL Report. According to her, an attempt
12. She was also examined by Smt. Dr. P. Vijayalakshmi, to rape the young girl was made, while according to PW2, she
Assistant Professor in Maternity Hospital, Tirupati, PW9 on 7th
B B was subjected to rape and the accused person had discharged
September, 1997. According to PW9, the girl had washed some liquid like urine in her private parts.
herself after the incident. PW9 made the following remarks:-
“There are no marks of violence nape of neck, front and back 15. It is a settled principle of law that a conflict or
of the body. The abdomen was soft. Liver and spleen not contradiction between the ocular and the medical evidence has
palpable. The breasts are not developed. There was no axilliary to be direct and material and only then the same can be
pubic hair. The hymen was intact. No laceration or congestion C C pleaded. Even where it is so, the Court has to examine as to
in fourchette, the parts were tender to touch, which according which of the two is more reliable, corroborated by other
to the doctor was an indication of attempt to rape with the girl.” prosecution evidence and gives the most balanced happening
The doctor, PW9 also stated that considering the age of the of events as per the case of the prosecution.
victim and on seeing that the parts were tender to touch, she
could say that there was an attempt to rape the victim girl A. D D 16. The absence of injuries on the back and neck of the
Haritha. Since, according to PW9, the girl had washed herself victim girl can safely be explained by the fact that she was lured
after the incident, the doctor had to reserve her final opinion till into the offence rather than being taken by using physical force
the Chemical Analyst’s Report (FSL Report). The vaginal swab on her. The preparation, attempt and actual act on the part of
and washing were preserved for chemical analysis. The FSL the accused is further clear from the fact that he had purchased
Report was Ext. P.6, while the Wound Certificate of victim girl E E bangles which he had promised to her and thereafter had taken
was Ext. P.5. According to the FSL Report, semen was her into the tennis court store room, the key of which was with
detected on Items 1, 2, 4, 5 and 6 and the same was of human him. This is also corroborated from the fact that even vide Ext.
origin. Saliva of human origin was detected on Item No. 3. The P.3, the langa as well as the bangles, coated with golden colour
Chemical Analyst also detected semen and spermatozoa on were recovered by the Investigating Officer, S.M. Khaleel,
Item Nos. 1, 2, 4, 5 and 6 and on Item No. 3 saliva was found. F F PW11.
13. Item No. 1 was torn brown colour polyester langa with 17. An eleven year old girl and that too from a small place
dirty stains which the girl was wearing. Item No. 2 was a torn and serving as a maid could hardly be aware of such
grey colour mill made cut drawer with dirty stains which the technicalities of law in relation to an offence of sexual assault.
accused was wearing. Item No. 3 and Item No. 4 were the She felt very shy while making her statement in the Court, which
G G fact was duly noticed by the Court in its Order dated 9th
turbid liquid which was present on the cloth and in a bottle
respectively. Item No. 5 was a cotton swab and Item No. 6 were November, 1998.
two glass slides which were sent for opinion and via FSL
18. In order to establish a conflict between the ocular
Report, Ext. P.6, the opinion was received.
evidence and the medical evidence, there has to be specific
14. From the above evidence, it is not feasible to state with H H and material contradictions. Merely because, some fact was
not recorded or stated by the doctor at a given point of time A A 30. Where the eye witness account is found credible and
and subsequently such fact was established by the expert trustworthy, medical opinion pointing to alternative
report, the FSL Report, would not by itself substantiate the plea possibilities may not be accepted as conclusive. The
of contradiction or variation. Absence of injuries on the body expert witness is expected to put before the Court all
of the prosecutrix, as already explained, would not be of any materials inclusive of the data which induced him to come
advantage to the accused. B B to the conclusion and enlighten the court on the technical
aspect of the case by examining the terms of science, so
19. In any case, to establish a conflict between the medical that the court, although not an expert, may form its own
and the ocular evidence, the law is no more res integra and judgment on those materials after giving due regard to the
stands squarely answered by the recent judgment of this Court expert’s opinion, because once the expert opinion is
in the case of Dayal Singh and Others v. State of Uttaranchal accepted, it is not the opinion of the medical officer but
C C
[(2012) 7 SCALE 165] that of the Court. {Plz. See Madan Gopal Kakad v. Naval
Dubey & Anr. [(1992) 2 SCR 921 : (1992) 3 SCC 204]}.”
“29. This brings us to an ancillary issue as to how the Court
would appreciate the evidence in such cases. The 20. In light of the above settled canon of criminal
possibility of some variations in the exhibits, medical and jurisprudence, we have no hesitation in concluding that we find
ocular evidence cannot be ruled out. But it is not that every D D no merit in the contention raised on behalf of the appellant with
minor variation or inconsistency would tilt the balance of regard to discrepancy in the medical and the ocular evidence.
justice in favour the accused. Of course, where
contradictions and variations are of a serious nature, which 21. Further, it is argued by the appellant that there is no
apparently or impliedly are destructive of the substantive direct evidence connecting the accused to the commission of
case sought to be proved by the prosecution, they may E E the crime and that there was no penetration, therefore, the
provide an advantage to the accused. The Courts, accused has not committed the offence punishable under
normally, look at expert evidence with a greater sense of Section 376 IPC. As already noticed, the prosecution had
acceptability, but it is equally true that the courts are not examined nearly 12 witnesses and produced documentary
absolutely guided by the report of the experts, especially evidence on record including Medical and FSL Report in
if such reports are perfunctory, unsustainable and are the F F support of its case.
result of a deliberate attempt to misdirect the prosecution.
In Kamaljit Singh v. State of Punjab [2004 Cri.LJ 28], the 22. Firstly, there is no reason for the Court to disbelieve
Court, while dealing with discrepancies between ocular the statement of PW2 that she knew the accused and that the
and medical evidence, held, “It is trite law that minor accused incited her and lured her to buying bangles and then
variations between medical evidence and ocular evidence took her to the storeroom where he committed rape on her even
G G threatened her of physical assault. PW3, the rickshaw puller
do not take away the primacy of the latter. Unless medical
evidence in its term goes so far as to completely rule out who was standing at the gate of the University, had seen the
all possibilities whatsoever of injuries taking place in the accused taking the young girl towards the tennis court store
manner stated by the eyewitnesses, the testimony of the room. Suspecting that he would do something wrong with the
eyewitnesses cannot be thrown out.” girl, he went to the room and knocked the door. The door was
H H not opened by the accused, however, he persisted with the
knocking. Thereafter the accused opened the door and abused A A Section 375 IPC has been worded by the legislature so as to
him, but PW3 maintained his presence of mind and bolted the presume that if there was penetration, it would be sufficient to
door from outside, leaving the accused and the prosecutrix constitute sexual intercourse necessary for the offence of rape.
inside the room and went to report the matter. On his way, he Penetration may not always result in tearing of the hymen and
met PW1, S.M. Ramesh, Sub-Inspector of Police, Traffic P.S., the same will always depend upon the facts and circumstances
Tirupati who accompanied him to the store room, brought both B B of a given case. The Court must examine the evidence of the
the accused and the victim to the police station, got an FIR prosecution in its entirety and then see its cumulative effect to
registered on his own statement, the investigation of which was determine whether the offence of rape has been committed or
conducted by PW11, S.M. Khaleel, the Inspector of Police. it is a case of criminal sexual assault or criminal assault
outraging the modesty of a girl.
23. We see no reason as to why this Court should
disbelieve the statements of PW1, PW2, PW3, PW5 and C C 26. At this stage, we may make a reference to the
PW11, particularly when they stood the lengthy cross- judgments of this Court which would support the view that we
examination without any material damage to the case of the have taken. Firstly, in the case of Guddu @ Santosh v. State
prosecution. of Madhya Pradesh [(2006) Supp. 1 SCR 414], where the
Court was dealing with somewhat similar circumstances, this
24. According to the medical evidence and statements of D D Court made a finding that the High Court had failed to notice
PW8 and PW9, the victim was 11 years old at the time of that even slight penetration was sufficient to constitute the
occurrence and her private parts were tender to touch. The offence of rape and upheld the conviction of accused, though
doctor, PW9 had reserved her final opinion awaiting the FSL the sentence was reduced. It held as under:-
Report. According to the FSL Report, the langa of the girl as
well as the drawer of the accused were containing semen of E E “It is not a case where merely a preparation had been
human origin. The slides which contained the swab taken from undergone by the appellant as contended by the learned
the vagina of the girl also showed presence of semen of human Counsel. Evidently, the appellant made an attempt to
origin. It may be noticed that these reports, in relation to Items criminally assault the prosecutrix. In fact, from the nature
1, 2, 4, 5 and 6 came despite the fact that the girl had washed of the medical evidence an inference could ‘also have been
herself after the occurrence. drawn by the High Court that there had been penetration.
F F
The High Court failed to notice that even slight penetration
25. The mere fact that the hymen was intact and there was was sufficient to constitute an offence of rape. The redness
no actual wound on her private parts is not conclusive of the of the hymen would not have been possible but for
fact that she was not subjected to rape. According to PW9, penetration to some extent. In Kappula Venkat Rao
there was a definite indication of attempt to rape the girl. Also, (supra), this Court categorically made a distinction between
later semen of human origin was traceable in the private parts G G the preparation for commission of an offence and attempt
of the girl, as indicated by the FSL Report. This would to commit the same, in the following terms:
sufficiently indicate that she had been subjected to rape.
Penetration itself proves the offence of rape, but the contrary Attempt to commit an offence can be said to begin when
is not true i.e. even if there is no penetration, it does not the preparations are complete and the culprit commences
necessarily mean that there is no rape. The Explanation to H H to do something with the intention of committing the
J.]
offence and which is a step towards the commission of the A A intention of committing sexual intercourse with her. The
offence. The moment he commences to do an act with the important ingredient of the offence under Section 375
necessary intention, he commences his attempt to commit punishable under Section 376 IPC is penetration which is
the offence. The word ‘attempt’ is not itself defined, and altogether missing in the instant case. No offence under
must, therefore, be taken in its ordinary meaning. This is Section 376 IPC can be made out unless there was
exactly what the provisions of Section 511 require. An B B penetration to some extent. In the absence of penetration
attempt to commit a crime is to be distinguished from an to any extent, it would not bring the offence of the appellant
intention to commit it, and from preparation made for its within the four corners of Section 375 of the Penal Code.
commission. Mere intention to commit an offence, not Therefore, the basic ingredients for proving a charge of
followed by any act, cannot constitute an offence. The will rape are the accomplishment of the act with force. The
is not to be taken for the deed unless there be some C C other important ingredient is penetration of the male organ
external act which shows that progress has been made in within the labia majora or the vulva or pudenda with or
the direction of it, or towards maturing and effecting it. without any emission of semen or even an attempt at
Intention is the direction of conduct towards the object penetration into the private part of the victim completely,
chosen upon considering the motives which suggest the partially or slightly would be enough for the purpose of
choice. Preparation consists in devising or arranging the D Sections 375 and 376 IPC. This Court had an occasion
D
means or measure necessary for the commission of the to deal with the basic ingredients of this offence in State
offence. It differs widely from attempt which is the direct of U.P. v. Babul Nath. In this case, this Court dealt with
movement towards the commission after preparations are the basic ingredients of the offence under Section 375 in
made. Preparation to commit an offence is punishable the following words: (SCC p. 34, para 8)
only when the preparation is to commit offence under
E E “8. It may here be noticed that Section 375 IPC defines
Section 122 (waging war against the Government of India)
and Section 399 (preparation to commit dacoity). The rape and the Explanation to Section 375 reads as follows:
dividing line between a mere preparation and an attempt
‘Explanation.—Penetration is sufficient to constitute the
is sometimes thin and has to be decided on the facts of
sexual intercourse necessary to the offence of rape.’
each case.
F F From the Explanation reproduced above it is distinctly clear
(Emphasis supplied)”
that ingredients which are essential for proving a charge
27. Secondly, in the case of Tarkeshwawr Sahu v. State of rape are the accomplishment of the act with force and
of Bihar (now Jharkhand) [(2006) 8 SCC 560], the Court held resistance. To constitute the offence of rape neither
as under:- Section 375 IPC nor the Explanation attached thereto
G G require that there should necessarily be complete
10. Under Section 375 IPC, six categories indicated above penetration of the penis into the private part of the victim/
are the basic ingredients of the offence. In the facts and prosecutrix. In other words to constitute the offence of rape
circumstances of this case, the prosecutrix was about 12 it is not at all necessary that there should be complete
years of age, therefore, her consent was irrelevant. The penetration of the male organ with emission of semen and
appellant had forcibly taken her to his gumti with the H H rupture of hymen. Even partial or slightest penetration of
the male organ within the labia majora or the vulva or A A raise protest. This is why no marks of physical injury could be
pudenda with or without any emission of semen or even noticed on her body. Absence of injuries in the context of the
an attempt at penetration into the private part of the victim present case would not justify drawing of any adverse inference
would be quite enough for the purpose of Sections 375 and against the prosecution, but on the contrary would support the
376 IPC. That being so it is quite possible to commit legally case of the prosecution.
the offence of rape even without causing any injury to the B B
genitals or leaving any seminal stains. But in the present 29. It will be useful to refer to the judgment of this Court in
case before us as noticed above there is more than the case of O.M. Baby (Dead) by L.Rs. v. State of Kerala [JT
enough evidence positively showing that there was sexual 2012 (6) SC 117], where the Court held as follows:-
activity on the victim and she was subjected to sexual
“16. A prosecutrix of a sex offence cannot be put on a par
assault without which she would not have sustained injuries C C with an accomplice. She is in fact a victim of the crime.
of the nature found on her private part by the doctor who
The Evidence Act nowhere says that her evidence cannot
examined her.”
be accepted unless it is corroborated in material
xxxxx xxxxx xxxxx xxxxx particulars. She is undoubtedly a competent witness under
Section 118 and her evidence must receive the same
12. The word “penetrate”, according to Concise Oxford D D weight as is attached to an injured in cases of physical
Dictionary means “find access into or through, pass violence. The same degree of care and caution must attach
through”. in the evaluation of her evidence as in the case of an
injured complainant or witness and no more. What is
13. In order to constitute rape, what Section 375 IPC necessary is that the court must be alive to and conscious
requires is medical evidence of penetration, and this may of the fact that it is dealing with the evidence of a person
E E
occur and the hymen remain intact. In view of the who is interested in the outcome of the charge levelled by
Explanation to Section 375, mere penetration of penis in her. If the court keeps this in mind and feels satisfied that
vagina is an offence of rape. Slightest penetration is it can act on the evidence of the prosecutrix, there is no
sufficient for conviction under Section 376 IPC. rule of law or practice incorporated in the Evidence Act
F F similar to Illustration (b) to Section 114 which requires it
28. In light of the above judgments, it can safely be
to look for corroboration. If for some reason the court is
concluded that there was limited penetration due to which
hesitant to place implicit reliance on the testimony of the
probably the hymen of the victim girl was not ruptured. The
prosecutrix it may look for evidence which may lend
Court should adhere to a comprehensive approach, in order
assurance to her testimony short of corroboration required
to examine the case of the prosecution. But as regards the facts
in the case of an accomplice. The nature of evidence
and circumstances of the present case, the presence of the G G
required to lend assurance to the testimony of the
element of mens rea on part of the accused cannot be denied.
prosecutrix must necessarily depend on the facts and
He had fully prepared himself. He first lured the girl not only by
circumstances of each case. But if a prosecutrix is an adult
inciting her, but even by actually purchasing bangles for her.
and of full understanding the court is entitled to base a
Thereafter, he took the girl to a room where he threatened her
conviction on her evidence unless the same is shown to
of physical assault as a consequence of which the girl did not H H
be infirm and not trustworthy. If the totality of the A A 30. Reference can also be made to the judgment of this
circumstances appearing on the record of the case Court in the case of State of Himachal Pradesh v. Asha Ram
disclose that the prosecutrix does not have a strong motive [AIR 2006 SC 381].
to falsely involve the person charged, the court should
ordinarily have no hesitation in accepting her evidence. 31. Thus, as per the facts and circumstances of the present
B B case, there is a direct link of the accused with the commission
14. We would further like to observe that while appreciating of the crime. Such conclusion can well be established by the
the evidence of the prosecutrix, the court must keep in
statement of the witnesses, the recoveries made, the Medical
mind that in the context of the values prevailing in the Report and the FSL Report. It does not leave any doubt in our
country, particularly in rural India, it would be unusual for a mind that the accused has committed the offence with which
woman to come up with a false story of being a victim of
sexual assault so as to implicate an innocent person. Such C C he was charged.
a view has been expressed by the judgment of this Court
32. Still, another argument was advanced to contend that
in the case of State of Punjab v. Gurmit Singh (1996) 2
the conviction of the appellant cannot be based on the sole
SCC 384 and has found reiteration in a recent judgment
statement of prosecutrix PW2, because it is not reliable. We
in Rajinder @ Raju v. State of H.P. (2009) 16 SCC 69,
para 19 whereof may be usefully extracted: D D have already discussed above at some length that there is
nothing on record to show that the statement of PW2 is either
19. In the context of Indian culture, a woman - victim unreliable or untrustworthy. On the contrary, in light of the given
of sexual aggression - would rather suffer silently facts, the statement of PW2 is credible, truthful and, thus, can
than to falsely implicate somebody. Any statement safely be relied upon.
of rape is an extremely humiliating experience for E E
a woman and until she is a victim of sex crime, she 33. Statement of PW2 is fully corroborated by the
would not blame anyone but the real culprit. While statements of PW1 and PW3. They are independent witnesses
appreciating the evidence of the prosecutrix, the and have no personal interest or motive of falsely implicating
courts must always keep in mind that no self- the accused or supporting the case of the prosecution. PW2
respecting woman would put her honour at stake by is a poor young girl who works as a maid servant. PW3 coming
F F
falsely alleging commission of rape on her and to her rescue and PW1 reaching the spot without any delay,
therefore, ordinarily a look for corroboration of her saved the girl from further assault and serious consequences.
testimony is unnecessary and uncalled for. But for Firstly, the High Court has not based the conviction of the
high improbability in the prosecution case, the accused solely on the statement of PW2. Even if it were so,
conviction in the case of sex crime may be based still the judgment of the High Court will not call for any
G G interference because the statement of PW2 was reliable,
on the sole testimony of the prosecutrix. It has been
rightly said that corroborative evidence is not an trustworthy and by itself sufficient to convict the accused, by
imperative component of judicial credence in every virtue of it being the statement of the victim herself.
case of rape nor the absence of injuries on the
private parts of the victim can be construed as 34. Lastly, coming back to the first contention raised on
evidence of consent.” H H
behalf of the accused, it is true that the appellate Court has to A A [2012 (4) SCALE 526], this Court held as under :
be more cautious while dealing with the judgment of acquittal.
Under the Indian criminal jurisprudence, the accused has two “36. The High Court has acquitted some accused
fundamental protections available to him in a criminal trial or while accepting the plea of alibi taken by them.
investigation. Firstly, he is presumed to be innocent till proved Against the judgment of acquittal, onus is on the
guilty and secondly that he is entitled to a fair trial and prosecution to show that the finding recorded by the
B B
investigation. Both these facets attain even greater significance High Court is perverse and requires correction by
where the accused has a judgment of acquittal in his favour. A this Court, in exercise of its powers under Article
judgment of acquittal enhances the presumption of innocence 136 of the Constitution of India. This Court has
of the accused and in some cases, it may even indicate a false repeatedly held that an appellate Court must bear
implication. But then, this has to be established on record of in mind that in case of acquittal, there is a double
C C presumption in favour of the accused. Firstly, the
the Court.
presumption of innocence is available to such
35. When we mention about the Court being cautious, it accused under the fundamental principles of
does not mean that the appellate Court cannot disturb the criminal jurisprudence, i.e., that every person shall
finding of acquittal. All that is required is that there should be a be presumed to be innocent unless proved guilty
compelling rationale and also clear and cogent evidence, which D D before the court and secondly, that a lower court,
has been ignored by the Trial Court to upset the finding of upon due appreciation of all evidence has found in
acquittal. We need not deliberate on this issue in greater detail. favour of his innocence. Merely because another
Suffice it to notice the recent judgment of this Court in the case view is possible, it would be no reason for this
of Ravi Kapur v. State of Rajasthan [JT 2012(7) SC 480], Court to interfere with the order of acquittal.
where the Court, after discussing various other judgments of E E
this Court held on the facts of that case that interference with 37. In Girja Prasad (Dead) By Lrs. v. State of M.P. [(2007)
the judgment of acquittal by the High Court was justified. The 7 SCC 625], this Court held as under:-
Court explained the law as under:-
“28. Regarding setting aside acquittal by the High
37. Lastly, we may proceed to discuss the first contention Court, the learned Counsel for the appellant relied
F F upon Kunju Muhammed v. State of Kerala (2004)
raised on behalf of the accused. No doubt, the Court of
appeal would normally be reluctant to interfere with the 9 SCC 193, Kashi Ram v. State of M.P. AIR 2001
judgment of acquittal but this is not an absolute rule and SC 2902 and Meena v. State of Maharashtra
has a number of well accepted exceptions. In the case of 2000 Cri LJ 2273. In our opinion, the law is well
State of UP v. Banne & Anr. [(2009) 4 SCC 271], the settled. An appeal against acquittal is also an
G G appeal under the Code and an Appellate Court has
Court held that even the Supreme Court would be justified
in interfering with the judgment of acquittal of the High every power to reappreciate, review and reconsider
Court but only when there are very substantial and the evidence as a whole before it. It is, no doubt,
compelling reasons to discard the High Court’s decision. true that there is presumption of innocence in favour
In the case of State of Haryana v. Shakuntala & Ors. of the accused and that presumption is reinforced
H H by an order of acquittal recorded by the Trial Court.
But that is not the end of the matter. It is for the A A presumption of innocence is available to him under
Appellate Court to keep in view the relevant the fundamental principle of criminal jurisprudence
principles of law, to reappreciate and reweigh the that every person shall be presumed to be innocent
evidence as a whole and to come to its own unless he is proved guilty by a competent court of
conclusion on such evidence in consonance with the law. Secondly, the accused having secured his
principles of criminal jurisprudence.” B B acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the trial
38. In Chandrappa v. State of Karnataka [(2007) 4 SCC
court.
415], this Court held as under:-
(5) If two reasonable conclusions are possible on
“42. From the above decisions, in our considered view, the the basis of the evidence on record, the appellate
following general principles regarding powers of the C C court should not disturb the finding of acquittal
appellate court while dealing with an appeal against an recorded by the trial court.”
order of acquittal emerge:
39. In C. Antony v. K.G. Raghavan Nair [(2003) 1 SCC
(1) An appellate court has full power to review, 1], this Court held :-
reappreciate and reconsider the evidence upon
which the order of acquittal is founded. D D “6. This Court in a number of cases has held that
though the appellate court has full power to review
(2) The Code of Criminal Procedure, 1973 puts no
the evidence upon which the order of acquittal is
limitation, restriction or condition on exercise of such
founded, still while exercising such an appellate
power and an appellate court on the evidence
power in a case of acquittal, the appellate court,
before it may reach its own conclusion, both on
E E should not only consider every matter on record
questions of fact and of law.
having a bearing on the question of fact and the
(3) Various expressions, such as, “substantial and reasons given by the courts below in support of its
compelling reasons”, “good and sufficient grounds”, order of acquittal, it must express its reasons in the
“very strong circumstances”, “distorted conclusions”, judgment which led it to hold that the acquittal is not
“glaring mistakes”, etc. are not intended to curtail F F justified. In those line of cases this Court has also
extensive powers of an appellate court in an appeal held that the appellate court must also bear in mind
against acquittal. Such phraseologies are more in the fact that the trial court had the benefit of seeing
the nature of “flourishes of language” to emphasise the witnesses in the witness box and the
the reluctance of an appellate court to interfere with presumption of innocence is not weakened by the
acquittal than to curtail the power of the court to G G order of acquittal, and in such cases if two
review the evidence and to come to its own reasonable conclusions can be reached on the
conclusion. basis of the evidence on record, the appellate court
should not disturb the finding of the trial court. (See
(4) An appellate court, however, must bear in mind
Bhim Singh Rup Singh v. State of Maharashtra1
that in case of acquittal, there is double
and Dharamdeo Singh v. State of Bihar.)”
presumption in favour of the accused. Firstly, the H H
40. The State has not been able to make out a case of A A than what was taken by it earlier and vide judgment dated
exception to the above settled principles. It was for the 11th May, 2006, it had acquitted the accused. This itself
State to show that the High Court has completely fallen in became a ground for interference by the High Court in the
error of law or that judgment in relation to these accused judgment of acquittal recorded by the Trial Court. From the
was palpably erroneous, perverse or untenable. None of judgment of the Trial Court, there does not appear to be
these parameters are satisfied in the appeal preferred by B B any substantial discussion on the effect of non-holding of
the State against the acquittal of three accused.” the test identification parade or the non-examination of the
doctor. On the contrary, the Trial Court passed its judgment
38. In the present case, there are more than sufficient on certain assumptions. None of the witnesses, not even
reasons for the High Court to interfere with the judgment the accused, in his statement, had stated that the jeep was
of acquittal recorded by the Trial Court. Probably, this issue C C at a fast speed but still the Trial Court recorded a finding
was not even raised before the High Court and that is why that the jeep was at a fast speed and was not being driven
we find that there are hardly any reasons recorded in the properly. The Trial Court also recorded that a suspicion
judgment of the High Court impugned in the present arises as to whether Ravi Kapur was actually driving the
appeal. Be that as it may, it was not a case of non- bus at the time of the accident or not and identification was
availability of evidence or presence of material and very important.
D D
serious contradictions proving fatal to the case of the
prosecution. There was no plausible reason before the 39. We are unable to understand as to how the Trial Court
Trial Court to disbelieve the eye account given by PW2 and could ignore the statement of the eye-witnesses,
PW4 and the Court could not have ignored the fact that particularly when they were reliable, trustworthy and gave
the accused had been duly identified at the place of the most appropriate eye account of the accident. The
occurrence and even in the Court. The Trial Court has E E judgment of the Trial Court, therefore, suffered from errors
certainly fallen in error of law and appreciation of evidence. of law and in appreciation of evidence both. The
Once the Trial Court has ignored material piece of interference by the High Court with the judgment of
evidence and failed to appreciate the prosecution acquittal passed by the Trial Court does not suffer from any
evidence in its correct perspective, particularly when the jurisdictional error.”
prosecution has proved its case beyond reasonable doubt, F F
then it would amount to failure of justice. In some cases, 36. Reverting to the facts of the present case, the High
such error in appreciation of evidence may even amount Court has recorded reasons while interfering with the judgment
to recording of perverse finding. We may also notice at the of acquittal by the Trial Court. We may also notice that the Trial
cost of repetition that the Trial Court had first delivered its Court attempted to create a serious doubt in the case of the
judgment on 24th June, 1999 convicting the accused of the G G prosecution on the basis of the statement of PW3, that he does
offences. However, on appeal, the matter was remanded not know what PW2 narrated to PW1, when he made inquiries.
on two grounds, i.e., considering the effect of non-holding We do not think that this was a proper way to appreciate the
of test identification parade and not examining the doctor. evidence on record.
Upon remand, the Trial Court had taken a different view
H H
37. The statement of a witness must be read in its entirety. A A or the Investigating officer PW11 to examine the victim
Reading a line out of context is not an accepted canon of particularly in relation to her private parts. Absence of such
appreciation of evidence. recording does not cause any infirmity to the case of the
prosecution much less a reason for acquitting the accused.
38. Another aspect of the statement of PW3 which the Trial
Court had a doubt with, was, as to how PW3 had noticed the 42. In our considered opinion, the learned Trial Court has
B B
accused taking away the minor girl along with him to the tennis failed to appreciate the evidence on record cumulatively and
store room and how he suspected some foul play. in its correct perspective by ignoring the material piece of
evidence and improper appreciation of evidence. It has
39. PW3 admittedly was a rickshaw puller and was recorded findings which are on the face of it unsustainable. This
standing at the gate of the University. The tennis store room error was rightly corrected by the High Court, and we see no
was quite near to the gate. PW3, quite obviously knew the C C reason to interfere with the judgment of conviction recorded by
accused as well as PW2. The conduct of PW3 in the given the High Court.
circumstances of the case was precisely as it would have been
of a person of normal behaviour and was not at all extra- 43. We find no merit in the present appeal and the same
ordinary in nature, particularly in the late hours of evening. is dismissed.
D D
40. Still, another fact that was taken into consideration by B.B.B. Appeal dismissed.
the Trial Court while acquitting the accused was that Ext. P.5
neither showed any injuries on the body nor reflected that rape
was attempted on the victim. In our considered view, the course
of appreciation of evidence and application of law adopted by E
the Trial Court was not proper. It was expected of the Trial Court
to examine the cumulative effect of the complete evidence on
record and case of the prosecution in its entirety.
41. Equally without merit is the contention that Ext. P.5

which was authored by PW9 upon examination of the victim F
neither recorded any injuries on her person nor the fact that she
was raped. It is for the reason that PW9 had not recorded any
final opinion and kept the matter pending, awaiting the FSL
Report. Furthermore, in Ext. P.5, she had noticed that her parts
were tender to touch. The vaginal swabs and vaginal wash were G
taken and slides were preserved. She was also sent to the
hospital for further examination. Thus, Ext. P.5 cannot be looked
into in isolation and must be examined in light of other ocular
and documentary evidence. In the peculiar facts and
circumstances of the case, it was not even expected of PW1 H
SOMAN A A took the lives of 31 people and more than 500 developed
v serious sickness out of which six lost their vision
STATE OF KERALA completely. The medical evidence and the chemical
(Criminal Appeal Nos.1533-1534 of 2005) analysis established that by consuming the liquor
adulterated with methyl alcohol, sold by the appellant,
DECEMBER 14, 2012.
B B one person died and several others became seriously
[AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.] sick. The trial court convicted the appellant u/ss 55(a) and
(i), 57A and 58 of the [Kerala] Abkari Act and sentenced
[KERALA] ABKARI ACT: him to undergo rigorous imprisonment for two years on
each count and a fine of Rs. 1 lakh on ach count except
ss.55(a) and (i), 57A(2)(ii) and 58 – Sale by accused, a C C u/s 57A. He was also convicted u/s 201 IPC and
retail vendor, of spurious liquor adulterated with methyl sentenced to rigorous imprisonment for six months and
alcohol – Death of one person while others developed serious fine of Rs.5,000/- . The accused as well as the State filed
sickness – High Court taking into account the consequences appeals. The High Court dismissed the appeals of the
of the culpable act, enhanced the sentence from two years RI, accused including the one filed by the appellant, and
as awarded by trial court, to 5 years RI – Held: High Court dealing with question of sentence on the basis of the
D D
was fully justified in taking into account the death of a person, State’s appeal, enhanced appellant’s sentence of
as a result of consuming the illicit liquor, sold by the appellant imprisonment from 2 years to 5 years.
as a ground for enhancing his sentence from two years to five
years RI – There was absolutely no illegality or lack of In the instant appeal filed by the accused, it was
jurisdiction in the order of High Court – However, in view of contended for the appellant that the death of a person as
E E a result of sale of spurious liquor could not have been a
the fact that in the case of the supplier co-accused, sentence
of life imprisonment has been reduced to 10 years RI, ground for imposition of a heavier sentence; and that his
sentence of appellant also reduced to 3 years RI being conviction was not maintainable u/s.57(2)(ii).
minimum u/s.57A(2)(ii) – Sentence / Sentencing. The question before the Court was: whether or not
SENTENCE / SENTENCING: F F the consequences of a culpable act and its impact on
other people can be a relevant consideration for imposing
Awarding of appropriate punishment – Taking into a heavier punishment, of course, within the limits fixed
consideration the consequences of culpable act and its by the law.
impact on other people – Principles from judicial
pronouncements, culled out. Dismissing the appeals, the Court
G G
The appellant, a retail vendor, was one of the HELD: 1.1. Punishment should acknowledge the
accused in the case of supply of spurious liquor, sanctity of human life. Giving punishment to the
contaminated with methyl alcohol, consumption whereof wrongdoer is at the heart of the criminal justice delivery,
but in our country, it is the weakest part of the
1155 H H administration of criminal justice. There are no legislative
SOMAN v. STATE OF KERALA 1157 1158 SUPREME COURT REPORTS [2012] 11 S.C.R.
or judicially laid down guidelines to assist the trial court A A harmfulness of the offence; and (2) whether they are an
in meting out the just punishment to the accused facing aggravating factor that need to be taken into account by
trial before it after he is held guilty of the charges. the courts while deciding on the sentence. [para 14]
Nonetheless, if one goes through the decisions of this [1170-C-F]
Court carefully, it would appear that this Court takes into
account a combination of different factors while Sentencing and Criminal Justice by Andrew Ashworth,
B B
exercising discretion in sentencing, that is 5th Edition, Cambridge University Press, 2010 –
proportionality, deterrence, rehabilitation etc. [para 12-13 referred to
and 21] [1169-C-D-H; 1170-A; 1174-C-D]
1.3. From the judicial pronouncements, one may
State of Punjab v. Prem Sagar 2008 (8) SCR 574 = 2008 conclude that:
(7) SCC 550; Ramashraya Chakravarti v. State of Madhya C C
i. Courts ought to base sentencing decisions on
Pradesh 1976 (2) SCR 703 = 1976 (1) SCC 281, Dhananjoy
various different rationales – most prominent
Chatterjee alias Dhana v. State of W.B. 1994 (1) SCR 37 =
amongst which would be proportionality and
1994 (2) SCC 220; State of Madhya Pradesh v. Ghanshyam
deterrence.
Singh 2003 (3) Suppl. SCR 618 = 2003 (8) SCC 13, State
of Karnataka v. Puttaraja 2003 (6) Suppl. SCR 274 = 2004 D D ii. The question of consequences of criminal
(1) SCC 475, Union of India v. Kuldeep Singh 2003 (6) action can be relevant from both:
Suppl. SCR 526 = 2004 (2) SCC 590, Shailesh Jasvantbhai proportionality and deterrence standpoint.
and another v. State of Gujarat and others 2006 (1) SCR 477
= 2006 (2) SCC 359; Siddarama and others v. State of iii. Insofar as proportionality is concerned, the
Karnataka 2006 (6) Suppl. SCR 276 = 2006 (10) SCC 673, E E sentence must be commensurate with the
State of Madhya Pradesh v. Babulal 2007 (12) SCR 795 seriousness or gravity of the offence.
=2008 (1) SCC 234; Santosh Kumar Satishbhushan Bariyar
iv. One of the factors relevant for judging
v. State of Maharashtra 2009 (9) SCR 90 = 2009 (6) SCC 498
seriousness of the offence is the
– referred to
consequences resulting from it.
F F
S Nyathi and The State [2005] ZASCA 134 (23 May
v. Unintended consequences/harm may still be
2005) – referred to.
properly attributed to the offender if they were
1.2. In a proportionality analysis, it is necessary to reasonably foreseeable. In case of illicit and
assess the seriousness of an offence in order to underground manufacture of liquor, the
determine the commensurate punishment for the G G chances of toxicity are so high that not only
offender. The seriousness of an offence depends, apart its manufacturer but the distributor and the
from other things, also upon its harmfulness. To retail vendor would know its likely risks to the
understand the relevance of consequences of criminal consumer. Hence, even though any harm to
conduct from a sentencing standpoint, one must the consumer might not be directly intended,
examine: (1) whether such consequences enhanced the H H some aggravated culpability must attach if the
consumer suffers some grievous hurt or dies A A 1.7. In the case of a co-accused, namely, accused no.
as result of consuming the spurious liquor. 25, who was the supplier of the illicit liquor to the
[para 22] [1174-D-H; 1175-A-B] appellant, this Court, while maintaining the conviction of
accused no.25 under the various provisions as recorded
1.4. In the instant case, it may be seen that all the by the trial court and affirmed by the High Court, deemed
three provisions as contained u/s. 55, 57A and 58 of the
B B it fit to reduce his sentence of life term u/s 57A(2)(ii) of the
[Kerala] Abkari Act, provide for long periods of Act to ten years rigorous imprisonment*. It will, therefore,
imprisonment, leaving it to the discretion of the court to not be fair not to give the same concession to the
fix the exact sentence having regard to the facts and appellant, who was the last and weakest link in the chain.
circumstances of a particular case. In regard to taking into Accordingly, his sentence from five years rigorous
consideration the consequences of an offence for
determining the appropriate punishment, a complete C C imprisonment is reduced to three years rigorous
imprisonment, being the minimum u/ss 57A (2) (ii) of the
answer is to be found in s. 57A itself. Under s.57A, Act. The fines imposed by the courts below for the
adulteration of liquor or omission to take reasonable different offences remain unaltered. [para 23] [1175-B-E-
precaution to prevent mixing of any noxious substance G-H; 1176-A-C]
with any liquor are made offences. And then different
sentences are provided in clauses (i), (ii) and (iii), D D *Chandran v. State of Kerala 2011 (8 ) SCR 273 = 2011
depending upon the different consequences resulting (5 ) SCC 161 - referred to
from the offence. In case of grievous hurt, the minimum
sentence is two years’ imprisonment, in case of death, Case Law Reference:
three years and, in any other case, one year’s 2011 (8) SCR 273 referred to para 23
imprisonment. There is no reason why the same basis E E
may not be adopted for sentencing under the other 2008 (8) SCR 574 referred to para 13
provisions of the Act, e.g., ss. 8, 55 (a) and (i) and 58. [para 1976 (2) SCR 703 referred to para 13
10-11] [1168-D; 1169-A-C]
1.5. Therefore, this Court is clearly of the view, that F F
the High Court was fully justified in taking into account 2003 (3) Suppl. SCR 618 referred to para 13
the death of a person, as a result of consuming the illicit 2003 (6) Suppl. SCR 274 referred to
liquor, sold by the appellant as a ground for enhancing para 13
his sentence from two years to five years rigorous
imprisonment. There was absolutely no illegality or lack 2003 (6) Suppl. SCR 526 referred to para 13
G G
of jurisdiction in the order of the High Court. [para 23]
[1175-B-D]
2006 (6) Suppl. SCR 276 referred to para 13
1.6. No good reason has been given to hold that the
appellant’s conviction u/s. 57 (2) (ii) is not sustainable. 2007 (12) SCR 795 referred to para 13
[Para 11] [1168-G-H] H H
[2005] ZASCA 134 referred to para 20 A A 2. Before the trial court the prosecution was able to
successfully establish that on October 21, 2000, two days prior
to the tragic occurrence, fresh supply was brought to the
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal appellant on a motor cycle. The arrack received by him on that
Nos. 1533-1534 of 2005. date was sold to various persons and on consuming it, they
B B became very ill and one of them, namely, Yohannan died. The
Court of Kerala at Ernakulam in Criminal Appeal No. 711 of post-mortem report of Yohannan showed that he died of
2002 (C) and Criminal Appeal No. 1285 of 2004. methanol poisoning. At the time of post-mortem his blood and
urine samples were taken for chemical analysis and the report
T.V. George, Dushyant Kumar, Maurya Sarkar for the (Ext.P1059) showed presence of methyl alcohol in the samples.
Appellant. C C Further, on the basis of a disclosure statement made by the
M.T. George for the Respondent. appellant [Ext.P413(a)] a plastic can (M.O.98) containing the
residue of the spirit sold by him was recovered and seized from
The Judgment of the Court was delivered by his shop. On chemical analysis, the contents of the can were
AFTAB ALAM, J. 1. The short question that arises for found adulterated with methyl alcohol. On the basis of the
D D evidences led before it, the trial court found and held, and quite
consideration in these appeals is whether or not the social
consequences of a culpable act and its impact on other people rightly, that the spirit sold by the appellant that caused the death
can be a relevant consideration for giving a heavier punishment, of Yohannan and sickness to several other persons was
of course, within the limits fixed by the law. The facts and spurious, being contaminated with highly injurious and
circumstances in which the question arises may be briefly poisonous substances and held him guilty of Sections 55(a) &
stated thus. In October 2000, 31 people died, and more than E E (i), 57A and 58 of the (Kerala) Abkari Act (hereinafter ‘the Act’).
500 developed serious sicknesses, of which six lost their vision The trial court sentenced the appellant to undergo rigorous
completely as a result of consuming spurious liquor, imprisonment for two years on each count and a fine of Rs.One
contaminated with methyl alcohol at different places in Kollam Lakh on each count except under Section 57A and in default
district, Kerala. Cases were initially registered at different police to undergo simple imprisonment for one year on each count.
stations, but, later on, all the cases were consolidated into a F F The trial court also found the appellant guilty under Section 201
single case and on the basis of investigations made by the of the Penal Code and on that count sentenced him to rigorous
police, 48 accused in all were put on trial. The accused were imprisonment for six months and a fine of Rs.5,000/- with the
broadly classified into three groups: one, the maker and default sentence of simple imprisonment for one month. The trial
manufacturers of the spurious liquor; two, the distributors and court directed that the sentences of imprisonment shall run
suppliers of the killer brew; and third the retail vendors who sold G G concurrently.
the stuff to the consumers. The appellant who was accused
No.41 before the trial court fell in the third category. The 3. Against the judgment and order passed by the trial court,
prosecution case, insofar as the appellant is concerned, was appeals were preferred both by the accused, including the
that he was engaged in the sale of liquor and he received his present appellant and the State. The State in its appeal
supplies from accused Nos. 25 & 26. H H
SOMAN v. STATE OF KERALA [AFTAB ALAM, J.] 1163 1164 SUPREME COURT REPORTS [2012] 11 S.C.R.
questioned the acquittal of some of the accused and also A A the appellant filed Review Petition (Crl.) Nos.613-614 of 2005,
demanded enhancement of sentence in respect of those who which were allowed by order dated November 14, 2005 and
were convicted and sentenced by the trial court. The High Court leave was granted. By the same order, the appellant was also
by its judgment and order dated October 8, 2004 dismissed enlarged on bail.
the appeals of the accused, including the one by the appellant.
However, dealing with the question of sentence on the basis B B 5. Learned counsel appearing for the appellant did not at
of the State’s appeal deemed it fit to enhance the appellant’s all question the conviction of the appellant under the different
sentence of imprisonment from two years to five years. In this provisions of the Act. He has, however, vehemently contended
connection, the High Court made the following observations:- that the High Court was completely wrong in enhancing the
appellant’s sentence and imprisonment from two years to five
“….Evidence adduced in this case clearly establishes that years. Learned counsel submitted that the only ground on which
C C
A 41 sold illicit arrack on 21.10.2000 and 22.10.2000 and the High Court has enhanced the appellant’s sentence was that
Yohannan died due to methanol poisoning of taking liquor the spirit sold by the appellant led to the death of one person.
from him and several persons were sustained injuries also. According to the learned counsel, this could not have been the
His conviction for offences under Section 55(a) and (i) and valid ground for giving a heavier punishment.
under Section 58 are confirmed. Even though he was only
a small retail seller, who got liquor from A 25, one person D D 6. Before considering this submission made by the
died and several persons were injured. But, he is punished learned counsel, it will be apposite to take a look at the relevant
only for two years under Section 55(a) and (i) and provisions of the Act, including those under which the appellant
punishment should commensurate with the offence. Hence, has been held guilty. Section 8 of the Act prohibits manufacture,
his conviction and sentence under Section 57A (2) (ii) is import, export, transport, transit, possession, storage, sales,
confirmed. Under Section 55 maximum punishment is ten E E etc., of arrack and it is in the following terms:-
years. We are of the opinion that the sentence imposed
“8.(1) Prohibition of manufacture, import, export, transport,
on him should be enhanced. He is sentenced to undergo
transit, possession, storage, sales etc., of arrack.- No
rigorous imprisonment for five years (instead of two years
person shall manufacture, import, export, transport, [without
as imposed by the Sessions Judge) and to pay a fine of
permit transit], possess, store, distribute, bottle or sell
Rs. one Lakh in default to undergo simple imprisonment F F
arrack in any form.
for six months on each count under Sections 55(a) and (i).
His conviction and sentence for other offence are also (2) If any person contravenes any provisions of sub-section
confirmed. Sentences shall run concurrently.” (1), he shall be punishable with imprisonment for a term
which may extend to ten years and with fine which shall not
4. Against the judgment and order passed by the High
G G be less than rupees one lakh.”
Court, the accused came to this Court in different batches. In
some Special Leave Petitions filed by different accused leave 7. Section 55 of the Act insofar as relevant for the present,
was granted but the Special Leave Petition Nos.237-238 filed is as under:-
by one Sudhakaran @ Sudha and the present appellant was
initially dismissed by order dated January 24, 2005. Later on, “55. For illegal import, etc.-Whoever in contravention of this
H H
Act or of any rule or order made under this Act: A A (i) if, as a result of such act, grievous hurt is caused
to any person, with imprisonment for a term which shall not
(a)imports, exports, [transports, transits or possesses] be less than two years but which may extend to
liquor or any intoxicating drug; or imprisonment for life, and with fine which may extend to
fifty thousand rupees;
(b) xxxx
B B
(ii) if, as a result of such act, death is caused to any
(c) xxxx
person, with death or imprisonment for a term which shall
(d) xxxx not be less than three years but which may extend to
imprisonment for life, and with fine which may extend to
(e) xxxx; or fifty thousand rupees;
C C
(f) xxxx; or (iii) in any other case, with imprisonment for a term
which shall not be less than one year, but which may extend
(g) xxxx; or
to ten years, and with fine which may extend to twenty-five
(h) bottles any liquor for purposes of sale; or thousand rupees.
D D
(i) [sells or stores for sale liquor] or any intoxicating Explanation.- For the purpose of this Section and
drug;][shall be punishable] Section 57B, the expression “grievous hurt” shall have the
same meaning as in Section 320 of the Indian Penal
(1) for any offence, other than an offence falling under Code, 1860 (Central Act 45 of 1860).
clause (d) or clause (e), with imprisonment for a term which
E E (2) Whoever omits to take reasonable precautions
may extend to [ten years and with fine which shall not be
less than rupees one lakh and] to prevent the mixing of any noxious substance or any
substance which is likely to endanger human life or to
(2) for an offence falling under clause (d) or clause (e), with cause grievous hurt to human beings, with any liquor or
imprisonment for a term which may extend to one year, or intoxicating drug shall, on conviction, be punishable,-
with fine which may extend to ten thousand rupees, or with F F
both.” (i)if as a result of such omission, grievous hurt is caused
to any person, with imprisonment for a term which shall not
8. Section 57A reads as under:- be less than two years but which may extend to
imprisonment for lie, and with fine which may extend to fifty
“57A. For adulteration of liquor or intoxicating drug with thousand rupees;
noxious substances, etc.-(1) Whoever mixes or permits to G G
be mixed any noxious substance or any substance which (ii)if as a result of such omission, death is caused to any
is likely to endanger human life or to cause grievous hurt person, with imprisonment for a term which shall not be
to human beings, with any liquor or intoxicating drug shall, less than three years but which may extend to
on conviction, be punishable- imprisonment for life, and with fine which may extend to
H H fifty thousand rupees;
(iii) in any other case, with imprisonment for a term which A A intoxicating drug in which any substance referred to in sub-
shall not be less than one year but which may extend to section (1) is mixed, the burden of proving that he did not
ten years, and with fine which may extend to twenty-five know that such substance was mixed with such liquor or
thousand rupees. intoxicating drug shall be on him”
(3) Whoever possesses any liquor or intoxicating drug in 9. Section 58 reads as under:-
B B
which any substance referred to in sub-section (1) is mixed,
knowing that such substance is mixed with such liquor or “58. For possession of illicit liquor.- Whoever, without lawful
intoxicating drug shall, on conviction, be punishable with authority, has in his possession any quantity of liquor or of
imprisonment for a term which shall not be less than one any intoxicating drug, knowing the same to have been
year but which may extend to ten years, and with fine which unlawfully imported, transported or manufactured, or
may extend to twenty-five thousand rupees. C C knowing [the duty, tax or rental payable under this Act] not
to have been paid therefor, [shall be punishable with
(4) Notwithstanding anything contained in the Code of imprisonment for a term which may extend to ten years and
Criminal Procedure, 1973 (Central Act 2 of 1974) no with fine which shall not be less than rupees one lakh].”
person accused or convicted of an offence under sub-
section (1) or sub-section (3) shall, if in custody, be D D 10. It may be seen that all the three provisions as contained
released on bail or on his own bond, unless- under Sections 55, 57A and 58 provide for long periods of
imprisonment, leaving it to the discretion of the court to fix the
(a) the prosecution has been given an opportunity to exact sentence having regard to the facts and circumstances
oppose the application for such release, and of a particular case. Section 57A which is one of the Sections
under which the appellant is convicted provides for a minimum
(b) where the prosecution opposes the application, the E E
sentence of three years’ imprisonment. When it was pointed
court is satisfied that there are reasonable grounds for out to the learned counsel that under the relevant provisions the
believing that he is not guilty of such offence. sentence of imprisonment could vary from one day to ten years
(under Section 55) and from three years to a life term (under
(5) Notwithstanding anything contained in the Indian
Section 57A(2)(ii)) and from one day to ten years under Section
Evidence Act, 1872 (1 of 1872)- F F 58, he replied that the appellant’s conviction was not
(a) where a person is prosecuted for an offence under sub- maintainable under Section 57A(2)(ii) and so far as Sections
section (1) or sub-section (2), the burden of proving that 55 and 58 are concerned, the relevant considerations for giving
he has not mixed or permitted to be mixed or, as the case a life sentence of imprisonment would be the amount of spirit
may be, omitted to take reasonable precautions to prevent stored for sale. According to him, the death of a person as a
the mixing of, any substance referred to in that sub-section G G result of sale of the spurious liquor could not have been a
with any liquor or intoxicating drug shall be on him; ground for imposition of a heavier sentence.
(b) where a person is prosecuted for an offence under sub- 11. We find no substance in the submissions. First, no
section (3) for being in possession of any liquor or good reason is given to hold that the appellant’s conviction
H H under Section 57 (2) (ii) is not sustainable; secondly, in regard
to the main issue in the case, i.e., whether the consequences A A Court carefully, it would appear that this Court takes into
of an offence can be taken into consideration for determining account a combination of different factors while exercising
the appropriate punishment, a complete answer is to be found discretion in sentencing, that is proportionality, deterrence,
in Section 57A itself. Under Section 57A, the adulteration of rehabilitation etc. (See: Ramashraya Chakravarti v. State of
liquor or the omission to take reasonable precaution to prevent Madhya Pradesh 2, Dhananjoy Chatterjee alias Dhana v.
3
the mixing of any noxious substance with any liquor are made B B State of W.B. , State of Madhya Pradesh v. Ghanshyam
offences. And then different sentences are provided in clauses Singh , State of Karnataka v. Puttaraja5, Union of India v.
4
(i), (ii) and (iii), depending upon the different consequences Kuldeep Singh6, Shailesh Jasvantbhai and another v. State
resulting from the offence. In case of grievous hurt, the minimum of Gujarat and others 7, Siddarama and others v. State of
sentence is two years’ imprisonment, in case of death, three Karnataka8, State of Madhya Pradesh v. Babulal9, Santosh
10
years and in any other case, one year’s imprisonment. There C C Kumar Satishbhushan Bariyar v. State of Maharashtra )
is no reason why the same basis may not be adopted for
sentencing under the other provisions of the Act, e.g., Sections 14. In a proportionality analysis, it is necessary to assess
8, 55 (a) & (i) and 58. the seriousness of an offence in order to determine the
commensurate punishment for the offender. The seriousness
12. Giving punishment to the wrongdoer is at the heart of of an offence depends, apart from other things, also upon its
the criminal justice delivery, but in our country, it is the weakest D D harmfulness. The question is whether the consequences of the
part of the administration of criminal justice. There are no offence can be taken as the measure for determining its
legislative or judicially laid down guidelines to assist the trial harmfulness? In addition, quite apart from the seriousness of
court in meting out the just punishment to the accused facing the offence, can the consequences of an offence be a
trial before it after he is held guilty of the charges. In State of legitimate aggravating (as opposed to mitigating) factor while
Punjab v. Prem Sagar1 this Court acknowledged as much and E E awarding a sentence. Thus, to understand the relevance of
observed as under – consequences of criminal conduct from a Sentencing
standpoint, one must examine: (1) whether such consequences
“2. In our judicial system, we have not been able to develop enhanced the harmfulness of the offence; and (2) whether they
legal principles as regards sentencing. The superior courts are an aggravating factor that need to be taken into account
except making observations with regard to the purport and F F by the courts while deciding on the sentence.
object for which punishment is imposed upon an offender,
have not issued any guidelines. Other developed countries 2. (2008) 7 SCC 550.
have done so. At some quarters, serious concerns have 3. (1976) 1 SCC 281.
been expressed in this behalf. Some committees as for 4. (2003) 8 SCC 13.
example Madhava Menon Committee and Malimath 5. (2004) 1 SCC 475.
G G
Committee have advocated introduction of sentencing 6. (2004) 1 SCC 475.
guidelines.” 7. (2006) 2 SCC 359.
8. (2006) 10 SCC 673.
13. Nonetheless, if one goes through the decisions of this
9. (2008) 1 SCC 234.
1. (2008) 7 SCC 550. H H 10. (2009) 6 SCC 498.
15. In Sentencing and Criminal Justice, 5th Edition, A A instance, on the extent to which the offender was put on notice
Cambridge University Press, 2010, Andrew Ashworth cites the of the risk of death. Thus, where it is known that driving
four main stages in the process of assessing the seriousness dangerously or under the influence of alcohol creates risk for
of an offence, as identified in a previous work by Andrew Von the safety of others, there would be a greater emphasis on
Hirsch and Nils Jareborg. (See Pages 108 – 112) resulting death while determining the sentence. (See Pages
B B 153 – 154).
1. Determining the interest that is violated (i.e.
physical integrity, material support, freedom from 19. Arguably, one might surmise that manufacturers of
humiliation or privacy/autonomy) spurious liquor must be able to reasonably foresee that
consumption of spurious liquor would affect the health (and
2. Quantification of the effect on the victim’s living possibly life) of others. Thus, there may be some basis for
standard. C C taking into account the unintended consequences while
determining sentence. The remoteness of harm would be a
3. Culpability of the offender.
factor when a person, by consuming drugs, dies after a period
4. Remoteness of the actual harm. of sustained use. Where a person consuming spurious liquor
dies as a result of such consumption, the harm is much more
16. Ashworth then examines various specific offences to D D direct and immediate, and remoteness of harm may not be as
ascertain how seriousness is typically gauged. The most much of an issue.
relevant example is that of drug trafficking, where the author
notes the problem that the offence lies fairly remote from 20. Germane to the issue under consideration is a decision
causing people’s deaths. Ashworth further notes that harsh of the Supreme Court of Appeal of South Africa in S Nyathi
11
sentences for drug trafficking offences is justified more by E E and The State and we may usefully refer to it. The case
deterrent rationales than proportionality concerns, although even relates to the death of six people resulting from the road
the deterrent rationales are beset with problems. (See Pages accident in which a sedan driven by the appellant in that case
128 – 130) collided with a minibus taxi. The impact caused the minibus to
overturn, killing six of its occupants. Some other passengers
17. Here, it needs to be noted that one major difference
F F were injured.
between production/sale of spurious liquor and drug trafficking
is that in the case of spurious liquor, the consumer does not The appellant was convicted of culpable homicide.
know what he is consuming, whereas in the case of drugs, the
The court found that the collision between the two vehicles
consumer, at least in the initial stages, knowingly and voluntarily
had taken place on a blind rise where a double barrier line
chooses to consume the drugs.
G G prohibited overtaking by vehicles coming from either direction.
18. Ashworth also examines the impact of unintended It was the admitted position at the trial that forward visibility was
consequences on sentencing. He notes that there is a tendency restricted. The court observed that overtaking on a barrier line,
to take those into account in manslaughter and for causing and specially on a double barrier line, where a motorist should
death by bad driving. The extent to which unintended
consequences may be taken into account would depend, for H H 11. [2005] ZASCA 134 (23 May 2005)
realise that his inability to observe approaching traffic is A A the negligent act. Relevant to such culpability or
compounded by the inability of the traffic in the opposite blameworthiness would be the extent of the accused’s
direction to see him is probably the most inexcusably deviation from the norm of reasonable conduct in the
dangerous thing a road user can do. Coming to the question circumstances and the foreseeability of the consequences
of sentence, the Court observed: of the accused’s negligence. At the same time the actual
B B consequences of the accused’s negligence cannot be
“[13] Road accidents with calamitous consequences are disregarded. If they have been serious and
frequently caused by inadvertence, often momentary. particularly if the accused’s negligence has resulted
[Dube v S [2002] JOL (Judgments on Line) 9645 (T), a in serious injury to others or loss of life, such
case mentioned by the regional magistrate, is an example. consequences will almost inevitably constitute an
The appellant was the driver of a bus involved in an aggravating factor, warranting a more severe
C C
accident on a mountain pass which killed twenty eight sentence than might otherwise have been imposed.’
passengers. On appeal a suspended sentence of two
years’ imprisonment was substituted for one of six years’ (Emphasis Added)
imprisonment imposed by the trial court on the footing that
the appellant’s negligence had been slight.] Overtaking on 21. Punishment should acknowledge the sanctity of human
a double barrier line is not inadvertence. It is a conscious D D life. We fully agree.
decision to execute a manoeuvre that involves taking a
22. From the above, one may conclude that:
fearfully high risk.
1. Courts ought to base sentencing decisions on
Referring then to some earlier decisions of the Court in
various different rationales – most prominent
paragraph 14 of the judgment it observed as under:- E E amongst which would be proportionality and
“[14] In S v Nxumalo 1982 (3) SA 856 (SCA) the court deterrence.
approved a passage from R v Barnardo 1960 (3) SA 552
2. The question of consequences of criminal action
(A) (at 557D-E) where the court held that although no
can be relevant from both a proportionality and
greater moral blameworthiness arises from the fact
F F deterrence standpoint.
that a negligent act caused death, the punishment
should acknowledge the sanctity of human life. It 3. Insofar as proportionality is concerned, the
affirmed the dicta of Miller J who twenty years earlier in S sentence must be commensurate with the
v Ngcobo 1962 (2) SA 333 (N) at 336H-337B had set out seriousness or gravity of the offence.
the approach to road death cases. At 861H Corbett JA
said: G G 4. One of the factors relevant for judging seriousness
of the offence is the consequences resulting from
‘It seems to me that in determining an appropriate it.
sentence in such cases the basic criterion to which the
Court must have regard is the degree of culpability or 5. Unintended consequences/harm may still be
blameworthiness exhibited by the accused in committing H H properly attributed to the offender if they were
reasonably foreseeable. In case of illicit and A A conviction of accused no.25 under the various provisions as
underground manufacture of liquor, the chances of recorded by the trial court and affirmed by the High Court.
toxicity are so high that not only its manufacturer but However, it accepted the plea made on behalf of accused
the distributor and the retail vendor would know its no.25 to reduce his sentence from a life term to ten years
likely risks to the consumer. Hence, even though imprisonment. Since this Court has deemed fit to reduce the
any harm to the consumer might not be directly B B sentence given to accused no.25 from a life term to ten years
intended, some aggravated culpability must attach rigorous imprisonment, we feel that it will not be fair not to give
if the consumer suffers some grievous hurt or dies the same concession to the appellant (accused no.41) who was
as result of consuming the spurious liquor. the last and weakest link in the chain. We, accordingly, reduce
his sentence from five years rigorous imprisonment to three
23. In light of the discussion made above, we are clearly
of the view, that the High Court was fully justified in taking into C C years rigorous imprisonment, being the minimum under Section
57A (2) (ii) of the Act. The fines imposed by the courts below
account the death of a person, as a result of consuming the for the different offences remain unaltered.
illicit liquor, sold by the appellant as a ground for enhancing his
sentence from two years to five years rigorous imprisonment. 24. In the result, the appeals are dismissed, subject to
There was absolutely no illegality or lack of jurisdiction in the modification and reduction in sentence, as noted above.
order of the High Court and we would have unhesitatingly D D
upheld the order of the High Court but for another reason. It is 25. The bail bonds of the appellant are cancelled. He will
noted above that a number of appeals against the judgment and be taken into custody to serve his remainder sentence.
order by the High Court came before this Court at the instance R.P. Appeals dismissed.
of a number of accused. One of them happened to be accused
No.25 who was the supplier of the illicit liquor to the appellant E
and from him the appellant had received the fatal supply that
led to the death of Yohannan and sickness of a number of
others. The trial court had convicted accused no.25 under
Section 57A(2)(ii) of the Act and sentenced him to
imprisonment for life and a fine of Rs. fifty thousand with the F
default sentence of simple imprisonment for six months. He was
convicted and sentenced to undergo rigorous imprisonment for
five years and a fine of rupees fifty thousand with the default
sentence of imprisonment for six months under Section
57A(2)(i) of the Act. He was also convicted under Sections G
57A(2)(iii), 55(a)(i) and 58 of the Act. The High Court had
maintained the conviction and sentence passed by the trial
court. This Court, however, by its judgment and order dated
April 4, 2011 in Chandran v. State of Kerala12, maintained the
12. (2011) 5 SCC 161. H

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[2012] 11 S.C.R. 873 874 SUPREME COURT REPORTS [2012] 11 S.C.R.

SUBRAMANIAN SWAMY A A Ministers – A wrong judgment or an inaccurate or incorrect

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx There is possibility that after hearing the shouting of Tanvir

A A so that the proceedings may not hop from Caesar to

JEEWAN & ORS. A A Evidence:

30. The above reasoning of the Bench squarely applies E

presence of a representative of the institute. A A STATE OF PUNJAB

Practice and Procedure – New Plea – Raised before

41. Equally without merit is the contention that Ext. P.5

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